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EFF's Deeplinks Blog: Noteworthy news from around the internetruSenator Wyden Asks NSA Director Nominee the Right Questionshttps://www.eff.org/ru/deeplinks/2018/03/senator-wyden-asks-nsa-director-nominee-right-questions
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Lt. Gen. Paul Nakasone, the new nominee to direct the NSA, <a href="https://www.c-span.org/video/?442611-1/nsa-nominee-lieutenant-general-paul-nakasone-testifies-confirmation-hearing">faced questions Thursday</a> from the Senate Select Committee on Intelligence about how he would lead the spy agency. One committee member, Senator Ron Wyden (D-OR), asked the nominee if he and his agency could avoid the mistakes of the past, and refuse to participate in any new, proposed spying programs that would skirt the law and violate Americans’ constitutional rights.</p>
<p>“In 2001, then-President Bush directed the NSA to conduct an illegal, warrantless wiretapping program. Neither the public nor the full intelligence committee learned about this program until it was revealed in the press,” Wyden said. Wyden, who was a member of the committee in 2001, said he personally learned about the NSA surveillance program—which bypassed judicial review required from the Foreign Intelligence Surveillance Court—by reading about it in the newspaper. Sen. Wyden continued:</p>
<p>“If there was a form of surveillance that currently requires approval by the [Foreign Intelligence Surveillance Court] and you were asked to avoid the court, based on some kind of secret legal analysis, what would you do?”</p>
<p>Lt. Gen. Nakasone deferred, assuring Sen. Wyden that he would receive a “tremendous amount of legal advice” in his new job, if confirmed.</p>
<p>Sen. Wyden interrupted: “Let me just stop it right there, so I can learn something that didn’t take place before. You would, if asked, tell the entire committee that you had been asked to [review such a program]?”</p>
<p>“Senator,” Lt. Gen. Nakasone responded, “I would say that I would consult with the committee—”</p>
<p>“When you say consult,” Wyden interrupted again, “you would inform us that you had been asked to do this?”</p>
<p>Lt. Gen. Nakasone repeated himself: he would consult with the committee, and keep senators involved in such discussions. Lt. Gen. Nakasone added, though, that “at the end of the day, Senator, I would say that there are two things I would do. I would follow the law, and I would ensure, if confirmed, that the agency follows the law.”</p>
<p>Sen. Wyden took it as a win.</p>
<p>“First of all, that’s encouraging,” Wyden said, “because that was not the case back in 2001.”</p>
<p>He continued: </p>
<p>“In 2001, the President said we’re going to operate a program that clearly was illegal. Illegal! You’ve told us now, you’re not going to do anything illegal. That’s a plus. And you told us that you would consult with us if you were ever asked to do something like that. So, I appreciate your answer.”</p>
<p>Sen. Wyden also asked Lt. Gen. Nakasone about encryption. Sen. Wyden asked Lt. Gen. Nakasone if he agreed with encryption experts’ opinion that, if tech companies were required to “permit law enforcement access to Americans’ private communications and data,” then such access could be exploited by “sophisticated, foreign government hackers,” too.</p>
<p>Again, Lt. Gen. Nakasone avoided a direct yes or no answer, and again, Sen. Wyden interrupted.</p>
<p>“My time is up, general. Just a yes-or-no answer to the question, with respect to what experts are saying,” Wyden said. “Experts are saying that the tech companies can’t modify their encryption to permit law enforcement access to Americans’ private communications without the bad guys getting in, too. Do you disagree with the experts, that’s just a yes or no.”</p>
<p>“I would offer Senator,” Lt. Gen. Nakasone said, “that it’s a conditional yes.”</p>
<p>Wyden, a staunch encryption advocate in the Senate, interpreted Lt. Gen. Nakasone’s answer positively. “That’s encouraging as well,” Wyden said. “I look forward to working with you in the days ahead.”</p>
<p>Senate Intelligence Committee Chairman Richard Burr (R-NC), at the close of the hearing, said he would like to swiftly move Lt. Gen. Nakasone’s nomination further. If other Senators have the opportunity to question Lt. Gen. Nakasone about his potential leadership of the NSA, we hope they ask pointed, necessary questions about the agency’s still-ongoing surveillance program Section 702, and how the nominee plans to reconcile the agency’s widespread, invasive spying program with Americans’ constitutional right to privacy. </p>
</div></div></div>Fri, 16 Mar 2018 21:19:26 +000098318 at https://www.eff.orgCommentaryPrivacyNSA SpyingDavid RuizNewly Released Surveillance Orders Show That Even with Individualized Court Oversight, Spying Powers Are Misusedhttps://www.eff.org/ru/deeplinks/2018/02/newly-released-surveillance-orders-show-even-individualized-court-oversight-spying
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Once-secret surveillance court <a href="https://www.documentcloud.org/public/search/projectid:37198-FISC-Opinions-on-classic-FISA-Released-01-31-2018">orders obtained</a> by EFF last week show that even when the court authorizes the government to spy on specific Americans for national security purposes, that authorization can be misused to potentially violate other people’s civil liberties.&#13;</p>
<p>These documents raise larger questions about whether the government can meaningfully protect people’s privacy and free expression rights under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits officials to engage in warrantless mass surveillance with far less court oversight than is required under the “traditional” FISA warrant process.&#13;</p>
<p>The documents are the third and final batch of Foreign Intelligence Surveillance Court (FISC) opinions released to EFF as part of a <a href="https://www.eff.org/foia/significant-fisc-opinions">FOIA lawsuit</a> seeking all significant orders and opinions of the secret court. Previously, the government released opinions dealing with FISA’s <a href="https://www.eff.org/deeplinks/2017/09/update-eff-lawsuit-results-release-more-fisc-opinions">business records</a> and pen register provisions, along with opinions under <a href="https://www.eff.org/deeplinks/2017/06/response-eff-lawsuit-doj-releases-18-new-opinions-fisc-concerning-section-702">Section 702</a>.&#13;</p>
<p>Although many of the 13 opinions are heavily redacted—and the government <a href="https://www.documentcloud.org/documents/4369189-Cover-Letter-for-FOIA-Production-20180130.html">withheld another 26</a> in full—the readable portions show several instances of the court blocking government efforts to expand its surveillance or ordering the destruction of information obtained improperly as a result of its spying.&#13;</p>
<h2>Court Rejects FBI Effort to Log Communications of Individuals Not Targeted by FISA Order</h2>
<p><span></span>For example, in a <a href="https://www.documentcloud.org/documents/4369187-EFF-FOIA-Jan-31-Doc-2.html">40-page opinion</a> issued in 2004 or 2005, FISC Judge Harold Baker rejected the FBI’s proposal to log copies of recorded conversations of people who, while not targeted by the agency, were still swept up in its surveillance. This likely occurred when innocent people used the same communications service as the FBI’s target, possibly a shared phone line. The opinion demonstrates both the risks of overcollection as part of targeted surveillance as well as the benefits of engaged, detailed court oversight.&#13;</p>
<p>Here’s how that oversight works: Once the FISC approves electronic surveillance under FISA’s Title I, the FBI can record a target’s communications, but it must follow “minimization procedures” to avoid unnecessarily listening in on conversations by others who are using the same “facility” (like a telephone line). In this case, however, the FBI employed a surveillance technique that apparently captured a lot of innocent communications. (This is often referred to as “incidental collection” because the recording of these conversations is incidental to spying on the target who uses the same phone line.)&#13;</p>
<p>Although redactions make it difficult to understand details of the FBI’s request to the court, it apparently sought to mark these out-of-scope conversations for later use, which would be inconsistent with the “Standard Minimization Procedures” approved for use in FISA Title I cases.&#13;</p>
<p>The FBI seems to have presented its request to the FISC as no big deal, with “minimal, if any” impact on the Fourth Amendment. Judge Baker saw it differently. He explained that “it is not sufficient to assert that, because the Standard Procedures already permit the FBI a great deal of latitude, it is reasonable to grant a little more.”&#13;</p>
<p>More fundamentally, the court took the FBI to task for the “surprising occasion” of seeking to expand its use of incidentally collected communications, rather than getting rid of them. It faulted the FBI for failing to account “for the possibility that overzealous or ill-intentioned personnel might be inclined to misuse information, if given the opportunity.” As the court put it, “the advantage of minimization at the acquisition stage is clear. Information that is never acquired in the first place cannot be misused.”&#13;</p>
<h2>NSA Makes Ridiculous Argument to Keep Communications it Obtained Without Court Authorization</h2>
<p>Other opinions EFF obtained detail the NSA’s unauthorized surveillance of a number of individuals and the government’s efforts to hold onto the data despite a FISA court’s order that the communications be destroyed.&#13;</p>
<p>A <a href="https://www.documentcloud.org/documents/4369178-EFF-FOIA-Jan-31-Doc-11.html">December 2010 order</a> by FISC Judge Frederick Scullin, Jr. describes how over a period between 15 months and three years, the NSA obtained a number of communications of U.S. persons. The precise number of communications obtained is redacted.&#13;</p>
<p>Rather than notifying the court that it had destroyed the communications it obtained without authorization, the NSA made an absurd argument in a bid to retain the communications: because the surveillance was unauthorized, the agency’s internal procedures that require officials to delete non-relevant communications should not apply. Essentially, because the surveillance was unlawful, the law shouldn’t apply and the NSA should get to keep what it had obtained.&#13;</p>
<p>The court rejected the NSA’s argument. “One would expect the procedures’ restrictions on retaining and disseminating U.S. person information to apply most fully to such communications, not, as the government would have it, to fail to apply at all,” the court wrote.&#13;</p>
<p>The court went on to say that “[t]here is no persuasive reason to give the (procedures) the paradoxical and self-defeating interpretation advanced by the government.”&#13;</p>
<p>The court then ordered the NSA to destroy the communications it had obtained without FISC authorization. But <a href="https://www.documentcloud.org/documents/4369180-EFF-FOIA-Jan-31-Doc-10.html">another opinion</a> issued by Judge Scullin in May 2011 shows that rather than immediately complying with the order, the NSA asked the FISC once more to allow it to keep the communications.&#13;</p>
<p>Again the court rejected the government’s arguments. “No lawful benefit can plausibly result from retaining this information, but further violation of law could ensue,” the court wrote. The court then ordered the NSA to not only delete the data, but to provide reports on the status of its destruction “until such time as the destruction process has been completed.”&#13;</p>
<h2>If Government Abuse of Surveillance Powers Occurs With Careful Oversight, What Happens Under Section 702?</h2>
<p>The new opinions show that even when the FISC judges actually approve targeted surveillance on particular individuals, the government still collects the contents of innocent people’s communications in ways that are incompatible with the law. Which raises the question: what is the government getting away with when it engages in surveillance that has even less FISC oversight?&#13;</p>
<p>Although the opinions discussed above concern FISA’s statutory requirements of minimization rather than constitutional limits, these are the sort of concerns that EFF has raised in the context of the NSA’s warrantless surveillance under Section 702 of FISA. Unlike FISA Title I, Section 702 does not require the FISC to conduct such detailed oversight of the government’s activities. The court does approve minimization procedures, but it does not review targets or facilities, meaning that it has less insight into the actual surveillance. That necessarily reduces opportunities to prevent overbroad collection or check an intelligence agency’s incremental loosening of its own rules. And, as we’ve seen, it has led to significant “<a href="https://www.newamerica.org/oti/blog/history-fisa-section-702-compliance-violations/">compliance violations</a>” by the NSA and other agencies using Section 702. &#13;</p>
<p>All surveillance procedures come with risks, especially with the level of secrecy involved in FISA. Nevertheless, opinions like these demonstrate that detailed court oversight offers the best hope of curtailing these risks. We hope it informs future debate in those areas where oversight is limited by statute, as with <a href="https://www.eff.org/deeplinks/2018/02/how-congresss-extension-section-702-may-expand-nsas-warrantless-surveillance">Section 702</a>. If anything, the decisions are more evidence that warrantless surveillance must end. </p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/significant-fisc-opinions">Significant FISC Opinions</a></div></div></div>Wed, 07 Feb 2018 22:20:55 +000098055 at https://www.eff.orgLegal AnalysisNSA SpyingAaron MackeyAndrew CrockerHow Congress’s Extension of Section 702 May Expand the NSA’s Warrantless Surveillance Authority https://www.eff.org/ru/deeplinks/2018/02/how-congresss-extension-section-702-may-expand-nsas-warrantless-surveillance
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Last month, Congress <a href="https://www.eff.org/deeplinks/2018/01/open-letter-our-community-congresss-vote-extend-nsa-spying-eff-executive-director">reauthorized</a> Section 702, the controversial law the NSA uses to conduct some of its most invasive electronic surveillance. With Section 702 set to expire, Congress <a href="https://www.eff.org/deeplinks/2018/01/open-letter-our-community-congresss-vote-extend-nsa-spying-eff-executive-director">had a golden opportunity</a> to fix the worst flaws in the NSA’s surveillance programs and protect Americans’ Fourth Amendment rights to privacy. Instead, it reupped Section 702 for six more years.&#13;</p>
<p>But the bill passed by Congress and signed by the president, labeled S. 139, didn’t just extend Section 702’s duration. It also may <em>expand</em> the NSA’s authority in subtle but dangerous ways.&#13;</p>
<p>The reauthorization marks the first time that Congress passed legislation that explicitly acknowledges and codifies some of the most controversial aspects of the NSA’s surveillance programs, including “about” collection and “backdoor searches.” That will give the government more legal ammunition to defend these programs in court, in Congress, and to the public. It also suggests ways for the NSA to loosen its already lax self-imposed restraints on how it conducts surveillance.&#13;</p>
<p><strong>Background: NSA Surveillance Under Section 702</strong>&#13;</p>
<p>First passed in 2008 as part of the FISA Amendments Act—and reauthorized last week until 2023—Section 702 is the primary legal authority that the NSA uses to conduct warrantless electronic surveillance against non-U.S. “targets” located outside the United States. The two publicly known programs operated under Section 702 are “upstream” and “downstream” (formerly known as “PRISM”).&#13;</p>
<p>Section 702 differs from other foreign surveillance laws because the government can pick targets and conduct the surveillance without a warrant signed by a judge. Instead, the Foreign Intelligence Surveillance Court (FISC) merely reviews and signs off on the government’s high-level plans once a year.&#13;</p>
<p>In both upstream and downstream surveillance, the intelligence community collects and searches communications it believes are related to “selectors.” Selectors are search terms that apply to a target, like an email address, phone number, or other identifier.&#13;</p>
<p>Under downstream, the government requires companies like Google, Facebook, and Yahoo to turn over messages “to” and “from” a selector—gaining access to things like emails and Facebook messages.&#13;</p>
<p>Under upstream, the NSA relies on Internet providers like AT&amp;T to provide access to large sections of the Internet backbone, intercepting and scanning billions of messages rushing between people and through websites. Until recently, upstream resulted in the collection of communications to, from, or <em>about</em> a selector. More on “about” collection below.&#13;</p>
<p>The overarching problem with these programs is that they are far from “targeted.” Under Section 702, the NSA collects billions of communications, including those belonging to innocent Americans who are not actually targeted. These communications are then placed in databases that other intelligence and law enforcement agencies can access—for purposes unrelated to national security—without a warrant or any judicial review.&#13;</p>
<p>In countless ways, Section 702 surveillance violates Americans’ privacy and other constitutional rights, not to mention the millions of people around the world whose right to communications privacy is also ignored.&#13;</p>
<p>This is why EFF vehemently opposed the Section 702 reauthorization bill that the President recently signed into law. We’ve been suing since 2006 over the NSA’s mass surveillance of the Internet backbone and trying to end these practices in the courts. While S. 139 was described by some as a reform, <a href="https://www.eff.org/deeplinks/2018/01/groups-line-meaningful-nsa-surveillance-reform">the bill was really a total failure to address the problems</a> <span>with Section 702. Worse still, it may expand the NSA’s authority to conduct this intrusive surveillance.</span>&#13;</p>
<p><strong>Codified “About” Collection</strong>&#13;</p>
<p>One key area where the new reauthorization could expand Section 702 is the practice commonly known as “about” collection (or “abouts” collection in the language of the new law). For years, when the NSA conducted its upstream surveillance of the Internet backbone, it collected not just communications “to” and “from” a selector like an email address, but also messages that merely mentioned that selector in the message body.&#13;</p>
<p>This is a staggeringly broad dragnet tactic. Have you ever written someone’s phone number inside an email to someone else? If that number was an NSA selector, your email would have been collected, though neither you nor the email’s recipient was an NSA target. Have you ever mentioned someone’s email address through a chat service at work? If that email address was an NSA selector, your chat could have been collected, too.&#13;</p>
<p>“About” collection involves scanning and collecting the contents of Americans’ Fourth Amendment-protected communications without a warrant. That’s unconstitutional, and the NSA should never have been allowed to do it in the first place. Unfortunately, the FISC and other oversight bodies tasked with overseeing Section 702 surveillance <a href="https://www.eff.org/deeplinks/2016/04/secret-court-takes-another-bite-out-fourth-amendment">often ignore</a> major constitutional issues. &#13;</p>
<p>So the FISC permitted “about” collection to go on for years, even though the collection continued to raise complex legal and technical problems. In 2011, the FISC <a href="https://www.lawfareblog.com/nsa-documents-part-ii-october-2011-fisc-opinion">warned the NSA</a> against collecting too many “non-target, protected communications,” in part due to “about” collection. Then the court imposed limits on upstream, including in how “about” communications were handled. And when the Privacy and Civil Liberties Oversight Board issued its <a href="https://www.eff.org/deeplinks/2014/07/flawed-oversight-board-report-endorses-general-warrants">milquetoast report</a> on Section 702 in 2014, it said that “about” collection pushed “the entire program close to the line of constitutional reasonableness.”&#13;</p>
<p>For its part, the NSA asserted that “about” collection was necessary technically to ensure the agency actually collected all the to/from communications it was supposedly entitled to.&#13;</p>
<p>In April 2017, we learned that the NSA’s technical and legal problems with “about” collection were even more pervasive than previously disclosed, and it had not been complying with the FISC’s already permissive limits. As a result, the NSA publicly <a href="https://www.nsa.gov/news-features/press-room/press-releases/2017/nsa-stops-certain-702-activites.shtml">announced</a> it was ending “about” collection entirely. This was <a href="https://www.eff.org/deeplinks/2017/04/end-nsas-about-searches-just-beginning">something of a victory</a>, following years of criticism and pressure from civil liberties groups and internal government oversight. But the program suspension rested on technical and legal issues that may change over time, and not a change of heart or a controlling rule. Indeed, the suspension is not binding on the NSA in the future, since it could simply restart “about” collection once it figured out a “technical” solution to comply with the FISC’s limits.&#13;</p>
<p>Critically, as originally written, Section 702 did not mention “about” collection. Nor did Section 702 provide any rules on collecting, accessing, or sharing data obtained through “about” collection.&#13;</p>
<p>But the new reauthorization codifies this controversial NSA practice.&#13;</p>
<p>According to the new law, “The term ‘abouts communication’ means a communication that contains a reference to, but is not to or from, a target of an acquisition authorized under section 702(a) of the Foreign Intelligence Surveillance Act of 1978.”&#13;</p>
<p>Under the new law, if the intelligence community wants to restart “about” collection, it has a path to doing so that includes finding a way to comply with the FISC’s minimal limitations. Once that’s done, an affirmative act of Congress is required to prevent it. If Congress does not act, then the NSA is free to continue this highly invasive “about” collection.&#13;</p>
<p>Notably, by including collection of communications that merely “contain a reference to . . . a <em>target</em>,” the new law may <a href="https://www.justsecurity.org/51110/facts-fisa-correcting-record-section-702-house-floor-debate/">go further</a> than the NSA’s prior practice of collecting communications content that contained specific <em>selectors</em>. The NSA might well argue that the new language allows them to collect emails that refer to targets by name or in other less specific ways, rather than actually containing a target’s email address, phone number, or other “selectors.”&#13;</p>
<p>Beyond that, the reauthorization codifies a practice that, up to now, has existed solely due to the NSA’s interpretation and implementation of the law. Before this year’s Section 702 reauthorization, the NSA could not credibly argue Congress had approved the practice. Now, if the NSA restarts “about” collection, it will argue it has express statutory authorization to do so. Explicitly codifying “about” collection is thus an expansion of the NSA’s spying authority.&#13;</p>
<p>Finally, providing a path to restart that practice absent further Congressional oversight, when that formal procedure did not exist before, is an expansion of the NSA’s authority.&#13;</p>
<p>For years, the NSA has pushed its boundaries. The NSA has repeatedly violated its own policies on collection, access, and retention, according to <a href="https://www.newamerica.org/oti/blog/history-fisa-section-702-compliance-violations/#other-minimization-and-unknown-violations">multiple, unsealed FISC opinions</a>. Infamously, by relying on an <a href="https://www.eff.org/deeplinks/2015/05/eff-case-analysis-appeals-court-rules-nsa-phone-records-dragnet-illegal">unjustifiable interpretation</a> of a separate statute—Section 215—the NSA illegally conducted bulk collection of Americans’ phone records for years. And even without explicit statutory approval, the NSA found a way to create this bulk phone record program and persuade the FISC to condone it, despite having begun the bulk collection without any court or statutory authority whatsoever. &#13;</p>
<p>History teaches that when Congress gives the NSA an inch, the NSA will take a mile. So we fear that the new NSA spying law’s unprecedented language on “about” collection will contribute to an expansion of the already excessive Section 702 surveillance.&#13;</p>
<p><strong>Codified Backdoor Searches</strong>&#13;</p>
<p>The Section 702 reauthorization provides a similar expansion of the intelligence community’s authority to conduct warrantless “backdoor searches” of databases of Americans’ communications. To review, the NSA’s surveillance casts an enormously wide net, collecting (and storing) billions of emails, chats, and other communications involving Americans who are not targeted for surveillance. The NSA calls this “<a href="https://www.justsecurity.org/51272/stop-calling-incidental-collection-americans-emails-govts-renewed-surveillance-powers/">incidental collection</a>,” although it is far from unintended. Once collected, these communications are often stored in databases which can be accessed by other agencies in the intelligence community, including the FBI. The FBI routinely <a href="https://www.justsecurity.org/30776/revelations-newly-declassified-fisc-opinion-section-702/">runs searches of these databases</a> using identifiers belonging to Americans when starting—or even before officially starting—investigations into domestic crimes that may have nothing to do with foreign intelligence issues. As with the initial collection, government officials conduct backdoor searches of Section 702 communications content without getting a warrant or other individualized court oversight—which violates the Fourth Amendment.&#13;</p>
<p>Just as with "about" collection, nothing in the original text of Section 702 authorized or even mentioned the unconstitutional practice of backdoor searches. While that did not stop the FISC from approving backdoor searches under certain circumstances, it did lead other courts to uphold surveillance conducted under Section 702 <a href="https://www.eff.org/deeplinks/2018/01/supreme-court-wont-hear-key-surveillance-case">and ignore whether these searches are constitutional</a>.&#13;</p>
<p>Just as with "about" collection, the latest Section 702 reauthorization acknowledges backdoor searches for the first time. It imposes a warrant requirement only in very narrow circumstances: where the FBI runs a search in a “predicated criminal investigation” not connected to national security. Under FBI practice, a predicated investigation is a formal, advanced case. By all accounts, though, backdoor searches are normally used far earlier. In other words, the new warrant requirement will rarely, if ever, apply. It is unlikely to prevent a fishing expedition through Americans’ private communications. Even where a search is inspired by <a href="https://epic.org/foia/epic-v-NSD/EPIC-17-05-15-NSD-FOIA-20180108-Production.pdf">a tip about a serious domestic crime</a> [.pdf], the FBI should not have warrantless access to a vast trove of intimate communications that would otherwise <a href="https://www.eff.org/deeplinks/2017/10/eff-and-aclu-ask-appeals-court-find-section-702-surveillance-unconstitutional">require complying with stringent warrant procedure</a><span>s</span>.&#13;</p>
<p>But following the latest reauthorization, the government will probably argue that Congress gave its OK to the FBI searching sensitive data obtained through NSA spying under Section 702, and using it in criminal cases against Americans.&#13;</p>
<p>In sum, the latest reauthorization of Section 702 is best seen as an expansion of the government’s spying powers, and not just an extension of the number of years that the government may exercise these powers. Either way, the latest reauthorization is a massive disappointment. That’s why we’ve <a href="https://www.eff.org/deeplinks/2018/01/open-letter-our-community-congresss-vote-extend-nsa-spying-eff-executive-director">pledged</a> to redouble our commitment to seek surveillance reform wherever we can: through the courts, through the development and spread of technology that protects our privacy and security, and through Congressional oversight.</p>
</div></div></div>Thu, 01 Feb 2018 19:33:54 +000097996 at https://www.eff.orgLegislative AnalysisPrivacyNSA SpyingDecoding 702: What is Section 702?Security EducationAndrew CrockerDavid RuizThe State of the Union: What Wasn’t Saidhttps://www.eff.org/ru/deeplinks/2018/01/state-union-what-wasnt-said
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>President Donald Trump’s first State of the Union address last night was remarkable for two reasons: for what he said, and for what he didn’t say.&#13;</p>
<p>The president took enormous pride last night in claiming to have helped “extinguish ISIS from the face of the Earth.”&#13;</p>
<p>But he failed to mention that Congress passed a law at the start of this year to extend unconstitutional, invasive NSA surveillance powers. Before it passed the House, the Senate, and received the president’s signature, the law was misrepresented by several members of Congress and by the president himself.&#13;</p>
<p>On the morning the House of Representatives voted to<a href="https://www.eff.org/deeplinks/2018/01/house-fails-protect-americans-unconstitutional-nsa-surveillance"> move the law to the Senate</a>, the president weighed in on Twitter, saying that “today’s vote is about foreign surveillance of foreign bad guys on foreign land.”&#13;</p>
<p>Make no mistake: the bill he eventually signed—S. 139—very much affects American citizens. That bill reauthorized Section 702 original enacted as part of the FISA Amendments Act—a legal authority the NSA uses to justify its collection of countless Americans’ emails, chat logs, and browsing history without first obtaining a warrant. The surveillance allowed under this law operates largely in the dark and violates Americans’ Fourth Amendment right to privacy.&#13;</p>
<p>Elsewhere in his speech, the president trumpeted a future America with rebuilt public infrastructure. He foretold of “gleaming new roads, bridges, highways, railways, and waterways across our land.”&#13;</p>
<p>What the president didn’t say, again, is worrying. The president failed to mention that the Federal Communications Commission, now led by his personal choice in chairman, made significant steps in dismantling another public good: the Internet.&#13;</p>
<p>Last year, the FCC voted to <a href="https://www.eff.org/deeplinks/2017/11/lump-coal-internets-stocking-fcc-poised-gut-net-neutrality-rules">repeal net neutrality rules</a>, subjecting Americans to an Internet that chooses winners and losers, fast lanes and slow ones. The FCC’s order leaves Americans open to abuse by well-funded corporations that can simply pay to have their services delivered more reliably—and quickly—on the Internet, and it creates a system where independent business owners and artists are at a disadvantage to have their online content viewed by others.&#13;</p>
<p>And the president last night mentioned fair trade deals and intellectual property. He complimented his administration’s efforts in rebalancing “unfair trade deals that sacrificed our prosperity and shipped away our companies, our jobs, and our Nation’s wealth.” He promised to “protect American workers and American intellectual property through strong enforcement of our trade rules.”&#13;</p>
<p>Trump didn’t mention that the United States' demands for the copyright and patent sections of a renegotiated NAFTA <a href="https://www.eff.org/deeplinks/2017/09/canada-pushes-back-against-us-copyright-demands-nafta">closely mirror those of the TPP</a>, with its <a href="https://www.eff.org/issues/tpp">unfair expansion of copyright law</a>. It’s ironic that one of the TPP’s most vocal critics would seemingly champion one of its most dangerous components.&#13;</p>
<p>The president gave Americans a highlight reel last night about his perceived accomplishments. But he neglected to tell the full story about his first year in the White House.&#13;</p>
<p>As civil liberties are threatened and constitutional rights are violated, EFF is continuing to fight. We are <a href="https://www.eff.org/deeplinks/2017/12/team-internet-far-done-whats-next-net-neutrality-and-how-you-can-help">still supporting net neutrality</a>. We are still <a href="https://www.eff.org/deeplinks/2018/01/open-letter-our-community-congresss-vote-extend-nsa-spying-eff-executive-director">taking the NSA to court over unconstitutional surveillance</a>. And we are still working to protect and expand your rights in the digital world, wherever the fight may take us.</p>
</div></div></div>Thu, 01 Feb 2018 01:39:35 +000097988 at https://www.eff.orgCommentaryPrivacyNSA SpyingDecoding 702: What is Section 702?Net NeutralityPatentsDavid RuizAn Open Letter to Our Community On Congress’s Vote to Extend NSA Spying From EFF Executive Director Cindy Cohnhttps://www.eff.org/ru/deeplinks/2018/01/open-letter-our-community-congresss-vote-extend-nsa-spying-eff-executive-director
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Dear friends,&#13;</p>
<p>Today, the United States Congress struck a significant blow against the basic human right to read, write, learn, and associate free of government’s prying eyes. &#13;</p>
<p>Goaded by those who let fear override democratic principles, some members of Congress shuttered public debate in order to pass a bill that extends the National Security Agency’s unconstitutional Internet surveillance for six years. &#13;</p>
<p>This means six more years of warrantless surveillance under Section 702 of the FISA Amendments Act. This is a long-abused law marketed as targeting foreigners abroad but which—intentionally and by design—subjects a tremendous amount of our Internet activities to government review, as they pass through key Internet checkpoints, and as they are stored by providers like Google and Facebook. Ultimately, the NSA uses Section 702 to sweep in and retain the communications of countless non-suspect Americans. &#13;</p>
<p>Today’s action also means six more years of FBI access to giant databases of these NSA-collected communications, for purposes of routine domestic law enforcement that stray far from the original justification of national security. &#13;</p>
<p class="pull-quote">We offer this response to the NSA and its allies in Congress: enjoy it while you can because it won’t last.</p>
<p>It didn’t have to be this way. Forward-thinking U.S. legislators from both sides of the aisle negotiated compromise bills that, while far from ideal, would have reined in some of the worst abuses of NSA surveillance powers while ensuring our intelligence agents could still do their jobs. But leadership from both Houses prevented the full Congress from considering these measures. For example, Senators were denied the opportunity to consider the USA Rights Act, and Representatives never had an opportunity to vote on the Poe-Lofgren Amendment during Thursday's floor vote. Both legislative vehicles offered sensible reforms that would have advanced the privacy of innocent American technology users. This procedural maneuvering also meant that your opportunity to make your voices heard was greatly truncated. &#13;</p>
<p>While this debate took place in the halls of Washington, the ramifications are global. Millions of people around the world suffer under the NSA’s dragnet data collection. EFF fights for the rights of technology users everywhere, and our mission will not be complete until innocent users worldwide can communicate with dignity and privacy. Today Congress demonstrated its lack of regard for the human rights to privacy and association. And it shirked its duty to protect Americans’ rights under the Constitution.&#13;</p>
<p>We offer this response to the National Security Agency and its allies in Congress: enjoy it while you can because it won’t last. &#13;</p>
<p>Today’s Congressional failure redoubles our commitment to seek justice through the courts and through the development and spread of technology that protects our privacy and security.&#13;</p>
<p>First, in the courts. We’ve actively litigated against NSA spying since 2005. Our flagship lawsuit against mass surveillance <em>Jewel v. NSA</em> is currently in discovery in the District Court, having survived multiple challenges by the government. The government even sought in October to indefinitely delay responding to demands from the court to turn over documentation of surveillance, but the court refused. Instead, they are facing a looming deadline to produce documents to the court: February 16, 2018. We’re also confronting NSA mass spying through use of the Freedom of Information Act, supporting the other cases against mass spying, and participating in the few criminal court cases where the government has admitted using evidence collected under Section 702. &#13;</p>
<p>We also continue to search for new cases and arguments to challenge NSA mass spying in court—stepping up to the legal challenge of finding people who have admissible evidence that they have been surveilled and can pass the hurdle of standing that has blocked so many before. &#13;</p>
<p>We aim to bring mass surveillance to the Supreme Court. By showcasing the unconstitutionality of the NSA’s collect-it-all approach to tapping the Internet, we’ll seek to end the dragnet surveillance of millions of innocent people. We know that the wheels of justice turn slowly, especially when it comes to impact litigation against the NSA, but we’re in this for the long run. &#13;</p>
<p>Second, we’ll continue to harden digital platforms to make them resistant to surveillance and increase the ability of everyone to be digitally secure. We will promote widespread encryption through EFF tools like <a href="https://certbot.eff.org/">Certbot</a> and <a href="https://www.eff.org/https-everywhere">HTTPS Everywhere</a>, and we’ll promote the adoption of security tools through <a href="https://ssd.eff.org/">education</a> and <a href="https://sec.eff.org">outreach</a>. We’ll stand up to ongoing FBI efforts to block or deter our access to strong encryption. Together, we can make it more difficult and more costly for the NSA’s spying eyes to ensnare innocent people. And we will help technology users increase their digital security against bad actors.&#13;</p>
<p>Finally, we will continue to work with our allies in Congress to expose and restrain NSA surveillance. There is much to do on Capitol Hill, long before the next reauthorization debate in 2023.&#13;</p>
<p>Our vision is for a secure digital world, free from government surveillance and censorship. You deserve to have a private conversation online, just as you can have one offline. You deserve the right to associate and organize with others, as well as to read and research, free of government snooping. While Congress failed the American people today, EFF will not. With the support of our more than 40,000 members, we are stronger and more ready than ever to keep up this fight.&#13;</p>
<p>Cindy Cohn <br />
Executive Director<br />
Electronic Frontier Foundation<br />
January 16, 2018&#13;</p>
<p><a href="https://theintercept.com/2014/02/10/new-photos-of-nsa-and-others/">Public domain image from Trevor Paglen</a></p>
</div></div></div>Fri, 19 Jan 2018 03:51:25 +000097838 at https://www.eff.orgNSA SpyingPrivacySecurity EducationCindy CohnHouse Fails to Protect Americans from Unconstitutional NSA Surveillancehttps://www.eff.org/ru/deeplinks/2018/01/house-fails-protect-americans-unconstitutional-nsa-surveillance
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p><em>UPDATE, January 12, 2018: The Senate could vote Tuesday on a disastrous NSA surveillance extension bill that violates the Fourth Amendment. Click the link at the bottom of the page to email your Senator today and tell them to oppose bill S. 139.</em>&#13;</p>
<p>The House of Representatives cast a deeply disappointing vote today to extend NSA spying powers for the next six years by a 256-164 margin. In a related vote, the House also failed to adopt meaningful reforms on how the government sweeps up large swaths of data that predictably include Americans’ communications. &#13;</p>
<p>Because of these votes, broad NSA surveillance of the Internet will likely continue, and the government will still have access to Americans’ emails, chat logs, and browsing history without a warrant. Because of these votes, this surveillance will continue to operate in a dark corner, routinely violating the Fourth Amendment and other core constitutional protections. &#13;</p>
<p>This is a disappointment to EFF and all our supporters who, for weeks, have spoken to defend privacy. And this is a disappointment for the dozens of Congress members who have tried to rein NSA surveillance in, asking that the intelligence community merely follow the Constitution.&#13;</p>
<p>Today’s House vote concerned S. 139, a bill to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA), a powerful surveillance authority the NSA relies on to sweep up countless Americans’ electronic communications. EFF vehemently opposed S. 139 for its failure to enact true reform of Section 702.&#13;</p>
<p>As passed by the House today, the bill:&#13;</p>
<ul><li>Endorses nearly all warrantless searches of databases containing Americans’ communications collected under Section 702.</li>
<li>Provides a narrow and seemingly useless warrant requirement that applies only for searches in some later-stage criminal investigations, a circumstance which the FBI itself has said almost never happens.</li>
<li>Allows for the restarting of “about” collection, an invasive type of surveillance that the NSA ended last year after being criticized by the Foreign Intelligence Surveillance Court for privacy violations.</li>
<li>Sunsets in six years, delaying Congress’ best opportunity to debate the limits NSA surveillance.</li>
</ul><p>You can <a href="https://www.eff.org/deeplinks/2018/01/groups-line-meaningful-nsa-surveillance-reform">read more about the bill here</a>. &#13;</p>
<p>Sadly, the House’s approval of S. 139 was its second failure today. The first was in the House’s inability to pass an amendment—through a 183-233 vote—that would have replaced the text of S. 139 with the text of the USA Rights Act, a bill that EFF is proud to support. You can <a href="https://www.eff.org/deeplinks/2017/10/usa-rights-act-protects-us-nsa-spying">read about that bill here</a>.&#13;</p>
<p>The amendment to replace the text of S. 139 with the USA Rights Act was introduced by Reps. Justin Amash (R-MI) and Zoe Lofgren (D-CA) and included more than 40 cosponsors from sides of the aisle. Its defeat <span></span>came from both Republicans and Democrats.&#13;</p>
<p>S. 139 now heads to the Senate, which we expect to vote by January 19. The Senate has already considered <a href="https://www.eff.org/deeplinks/2017/11/senates-liberty-act-helps-close-backdoor">stronger bills</a> to rein in NSA surveillance, and we call on the Senate to reject this terrible bill coming out of the House.&#13;</p>
<p>We thank every supporter who lent their voice to defend the Constitution. And we thank every legislator who championed civil liberties in this months-long fight. The debate around surveillance reform has evolved—and will continue to evolve—for years. We thank those who have come to understand that privacy does not come at the price of security. Indeed, we can have both.&#13;</p>
<p>Thank you to the scores of representatives who sponsored and co-sponsored the USA Rights Act amendment, or voiced support on the House floor today, including Reps. Amash, Lofgren, Jerrold Nadler, Ted Poe, Jared Polis, Mark Meadows, Tulsi Gabbard, Jim Sensenbrenner, Walter Jones Jr., Thomas Massie, Andy Biggs, Warren Davidson, Mark Sanford, Steve Pearce, Scott Perry, Sheila Jackson Lee, Alex Mooney, Paul Gosar, David Schweikert, Louie Gohmert, Ted Yoho, Joe Barton, Dave Brat, Keith Ellison, Lloyd Doggett, Rod Blum, Tom Garrett Jr., Morgan Griffith, Jim Jordan, Earl Blumenauer, Ro Khanna, Beto O’Rourke, Todd Rokita, Hank Johnson, Blake Farenthold, Mark Pocan, Dana Rohrabacher, Raúl Grijalva, Raúl Labrador, Peter Welch, Tom McClintock, Salud Carbajal, Ted Lieu, Bobby Scott, Pramila Jayapal, and Jody Hice.&#13;</p>
<p> Email your Senator today and tell them to uphold your constitutional rights by rejecting S. 139.&#13;</p>
<p class="take-action subhead"><a href="https://act.eff.org/action/stop-the-senate-from-extending-nsa-spying">Take Action</a></p>
<p class="take-action take-explainer">Tell Your Senator to Reject S. 139</p>
</div></div></div>Thu, 11 Jan 2018 18:49:33 +000097815 at https://www.eff.orgPolicy AnalysisNSA SpyingDecoding 702: What is Section 702?PrivacySecurity EducationDavid RuizGroups Line Up For Meaningful NSA Surveillance Reformhttps://www.eff.org/ru/deeplinks/2018/01/groups-line-meaningful-nsa-surveillance-reform
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Multiple nonprofit organizations and policy think tanks, and one company have recently joined ranks to limit broad NSA surveillance. Though our groups work for many causes— freedom of the press, shared software development, universal access to knowledge, equal justice for all—our voices are responding to the same threat: the possible expansion of Section 702 of the FISA Amendments Act.&#13;</p>
<p>On January 5, the Rules Committee for the House of Representatives introduced S. 139. The bill—<a href="http://docs.house.gov/billsthisweek/20180108/BILLS-115S139-RCP115-%2053.pdf">which you can read here</a>—is the most recent attempt to expand Section 702, a law that the NSA uses to justify the collection of Americans’ electronic communications during foreign intelligence surveillance. The new proposal borrows some of the worst ideas from prior bills meant to reauthorize Section 702, while adding entirely new bad ideas, too.&#13;</p>
<h3>Meaningless Warrant Requirements</h3>
<p>The new proposal to expand Section 702 fails to protect Americans whose electronic communications are predictably swept up during broad NSA surveillance. Today, the NSA uses Section 702 to target non-U.S. persons not living in the United States, collecting emails both “to” and “from” an individual. Predictably, those emails include messages sent by U.S. persons. The government stores those messages in several databases that—because of a loophole—can then be searched and read by government agents who do not first obtain a warrant, even when those communications are written by Americans.&#13;</p>
<p>These searches are called “backdoor” searches because they skirt Americans’ Fourth Amendment rights to a warrant requirement.&#13;</p>
<p>The new proposal would require a warrant for such backdoor searches for only the most narrow of circumstances.&#13;</p>
<p>According to the bill, FBI agents would only have to obtain search warrants “in connection with a predicated criminal investigation opened by the Federal Bureau of Investigation that does not relate to the national security of the United States.”&#13;</p>
<p>That means an FBI agent would only need to get a warrant once she has found enough information to launch a formal criminal investigation. Should an FBI agent wish to search through Section 702-collected data that belongs to Americans, she can do so freely without a warrant.&#13;</p>
<p>The bill’s narrow warrant requirement runs the Fourth Amendment through a funhouse mirror, flipping its intentions and providing protections only <i>after</i> a search has been made.&#13;</p>
<h3><b>“About” Collection </b></h3>
<p>“About” collection is an invasive type of NSA surveillance that the agency ended last year, after years of criticism from the Foreign Intelligence Surveillance Court, which provides judicial oversight on Section 702. This type of collection allows the NSA to tap the Internet’s backbone and collect communications that are simply “about” a targeted individual. The messages do not have to be “to” or “from” the individual.&#13;</p>
<p>The new proposal to expand Section 702 regrettably includes a path for the Attorney General and the Director of National Intelligence to restart “about” collection. It is a model that we saw in an earlier Section 702 reauthorization bill in 2017. EFF vehemently opposed that bill, which <a href="https://www.eff.org/deeplinks/2017/11/house-intelligence-committees-nsa-surveillance-bill-includes-new-threats-and-old">you can read about here</a>.&#13;</p>
<h3><b>Working Together</b></h3>
<p>Today, EFF sent a letter to House of Representatives leadership, lambasting any bills that would extend Section 702 and did not include robust backdoor search warrant requirements. <a href="https://www.eff.org/document/eff-letter-house-leadership-section-702">You can read our letter here</a>.&#13;</p>
<p>EFF also wrote a letter—joined by Aspiration Tech, Freedom of the Press Foundation, and Internet Archive—to House of Representatives Minority Leader Nancy Pelosi, demanding the same. <a href="https://www.eff.org/document/eff-coalition-letter-leader-pelosi-section-702">You can read that letter here</a>. &#13;</p>
<p>GitHub, the communal coding company, joined the effort, sending a letter of their own to Minority Leader Pelosi’s office, too. <a href="https://www.eff.org/document/github-letter-leader-pelosi-section-702">Read GitHub’s letter here</a>. &#13;</p>
<p>And policy think tanks across America, including the <a href="https://www.brennancenter.org/press-release/new-surveillance-reauthorization-bill-would-codify-warrantless-searches-americans%E2%80%99">Brennan Center for Justice</a> and Center for American Progress, have written in opposition of S. 139.&#13;</p>
<p>For weeks, surveillance apologists have tried to ram NSA surveillance expansion bills through Congress. They are not letting up.&#13;</p>
<p>We will need your help this week more than ever. To start, you can call Leader Pelosi and let her know: any bill to extend Section 702 must include robust warrant requirements for American communications. &#13;</p>
<p><a href="https://act.eff.org/action/tell-leader-pelosi-to-require-warrants-for-nsa-spying">Call today</a>.</p>
</div></div></div>Tue, 09 Jan 2018 01:21:47 +000097762 at https://www.eff.orgLegislative AnalysisDecoding 702: What is Section 702?NSA SpyingPrivacySecurity EducationDavid RuizSupreme Court Won’t Hear Key Surveillance Casehttps://www.eff.org/ru/deeplinks/2018/01/supreme-court-wont-hear-key-surveillance-case
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The Supreme Court announced today that it will not review a lower court’s ruling in <i>United States v. Mohamud</i>, which upheld warrantless surveillance of an American citizen under <a href="https://www.eff.org/702-spying" target="_blank">Section 702</a> of the Foreign Intelligence Surveillance Act. EFF had <a href="https://www.eff.org/press/releases/eff-urges-supreme-court-take-unconstitutional-nsa-surveillance-reverse-dangerous">urged the Court to take up<i> Mohamud</i></a> because this surveillance violates core Fourth Amendment protections. The Supreme Court’s refusal to get involved here is disappointing.&#13;</p>
<p>Using Section 702, the government warrantlessly collects billions of communications, including those belonging to a <a href="https://www.eff.org/deeplinks/2017/06/nsa-reneges-promise-tell-congress-how-many-innocent-americans-it-spies">large but unknown number</a> of Americans. The Ninth Circuit Court of Appeals upheld this practice only by creating <a href="https://www.eff.org/deeplinks/2017/10/eff-and-aclu-ask-appeals-court-find-section-702-surveillance-unconstitutional">an unprecedented exception</a> to the Fourth Amendment. This exception allows the government to collect Americans’ communications without a warrant by targeting foreigners outside the United States, known as “<a href="https://www.eff.org/pages/Incidental-collection">incidental collection</a>.”&#13;</p>
<p>We wish the Supreme Court had stepped in to fix this misguided ruling, but its demurral shouldn’t be taken to mean that Section 702 surveillance is totally fine. Some of the most controversial aspects of these programs have never been reviewed by a public court, let alone the Supreme Court. That includes “backdoor searches,” the practice of searching databases for Americans’ incidentally collected communications. Even in deciding <i>Mohamud, </i>the Ninth Circuit refused to address the constitutionality of backdoor searches.&#13;</p>
<p>Thorough judicial review of Section 702 surveillance remains one of EFF’s key priorities. In addition, as Congress nears a vote on the statute’s reauthorization, we’re pushing for legislative reforms to eliminate backdoor searches and other unconstitutional practices.</p>
</div></div></div>Tue, 09 Jan 2018 00:22:57 +000097758 at https://www.eff.orgNSA SpyingSecurity EducationAndrew CrockerCourt Challenges to NSA Surveillance: 2017 in Reviewhttps://www.eff.org/ru/deeplinks/2017/12/court-challenges-nsa-surveillance-2017-review
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>One of the government’s most powerful surveillance tools is scheduled to sunset in less than three weeks, and, for months, EFF has fought multiple legislative attempts to either extend or expand the NSA’s spying powers—warning the public, Representatives, and Senators about circling bills that threaten Americans’ privacy. But the frenetic, deadline-pressure environment on Capitol Hill betrays the slow, years-long progress that EFF has made elsewhere: the courts.&#13;</p>
<p>2017 was a year for slow, procedural breakthroughs.&#13;</p>
<p>Here is an update on the lawsuits that EFF and other organizations have against broad NSA surveillance powers.&#13;</p>
<h3>Jewel v. NSA</h3>
<p>EFF began 2017 with significant leverage in our signature lawsuit against NSA surveillance, <i>Jewel v. NSA</i>. The year prior, U.S. District Court Judge Jeffrey White in Oakland, California, ordered the U.S. government to comply with EFF’s “discovery” requests—which are inquiries for evidence when lawsuits advance towards trial. In several lawsuits, this process can take months. In <i>Jewel v. NSA</i>, simply <a href="https://www.eff.org/deeplinks/2016/02/big-victory-judge-pushes-jewel-v-nsa-forward">allowing the process to begin</a> took eight years.&#13;</p>
<p>This year, EFF waited expectantly for the U.S. government to provide materials that could prove our plaintiff was subject to NSA surveillance through the agency’s practice of tapping into the Internet’s backbone to collect traffic. But expectations were tempered. The U.S. government’s lawyers missed the discovery deadline, asked for an extension, and were <a href="https://www.eff.org/deeplinks/2017/05/judge-orders-government-provide-evidence-about-internet-backbone-upstream">given a new, tentative deadline by the judge</a>: August 9, 2017.&#13;</p>
<p>The U.S. government’s lawyers missed that deadline, and asked for an extension, approved by the judge: October 9, 2017.&#13;</p>
<p>The U.S. government’s lawyers missed that deadline, and asked for another extension, this time indefinitely. &#13;</p>
<p>Producing the materials, the government attorneys claimed, was simply too difficult to do on a timely basis.&#13;</p>
<p>“[T]he volume of documents and electronic data that the government defendants must review for potentially responsive information is massive,” the attorneys wrote.&#13;</p>
<p>EFF strongly opposed the government’s request for an indefinite extension, and suggested a new deadline in January to comply with the court’s previous orders. The judge agreed and put an end to the delay. The deadline is now January 22, 2018.&#13;</p>
<p>The basic premise of our questions is simple: we want information that explains whether the plaintiffs’ data was collected. &#13;</p>
<p>EFF hopes the government can follow the judge’s orders this time.&#13;</p>
<h3><b>Mohamed Osman Mohamud v. United States</b></h3>
<p>EFF filed an <a href="https://www.eff.org/document/mohamud-eff-cert-petition">amicus brief</a> this year asking the Supreme Court to overturn a lower court’s ruling that allowed government agents to bypass the Fourth Amendment when searching through the electronic communications of U.S. persons.&#13;</p>
<p>The amicus was filed after a decision in <i>Mohamud v. United States</i>, a lawsuit that concerns the electronic communications of American citizen Mohamed Mohamud. In 2010, Mohamud was arrested for allegedly plotting to use a car bomb during a Christmas tree lighting ceremony in his home state of Oregon. It was only after Mohamud’s conviction in <i>U.S. v. Mohamud</i> that he learned the government relied on evidence collected under Section 702 of the FISA Amendments Act for his prosecution.&#13;</p>
<p>Section 702 authorizes surveillance on non-U.S. persons not living in the United States. Mohamud fits neither of those categories. After learning that the evidence gathered against him was collected under Section 702, Mohamud challenged the use of this evidence, claiming that Section 702 was unconstitutional.&#13;</p>
<p>The U.S. Court of Appeals for the Ninth Circuit, which heard Mohamud’s counter arguments, disagreed. In a disappointing <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/05/14-30217.pdf">opinion</a> that scuttles constitutional rights, the court ruled that Americans whose communications are incidentally collected under Section 702 have no Fourth Amendment rights when those communications are searched and read by government agents.&#13;</p>
<p>Together with Center for Democracy &amp; Technology and New America’s Open Technology Institute, EFF supported Mohamud’s request that the U.S. Supreme Court reconsider the appellate court’s opinion.&#13;</p>
<p>“We urge the Supreme Court to review this case and Section 702, which subjects Americans to warrantless surveillance <a href="https://www.eff.org/deeplinks/2017/06/nsa-reneges-promise-tell-congress-how-many-innocent-americans-it-spies" target="_blank">on an unknown scale</a>,” said EFF Staff Attorney Andrew Crocker. “We have long advocated for reining in NSA mass surveillance, and the ‘incidental’ collection of Americans’ private communications under Section 702 should be held unconstitutional once and for all.”&#13;</p>
<h3><b>United States v. Agron Hasbajrami </b></h3>
<p>EFF also filed an <a href="https://www.eff.org/document/hasbajrami-eff-aclu-amicus-brief">amicus brief</a> in the case of <i>U.S. v. Agron Hasbajrami</i>, a lawsuit with striking similarities to <i>U.S. v. Mohamud. </i>&#13;</p>
<p>In 2011, Agron Hasbajrami was arrested at JFK Airport before a flight to Pakistan for allegedly providing material support to terrorists. In 2013, Hasbajrami pleaded guilty to the charges.&#13;</p>
<p>Hasbajrami’s court case was set for July 2015. Before going to trial, Hasbajrami pleaded guilty a second time.&#13;</p>
<p>But then something familiar happened. Much like Mohamud, Hasbajrami learned that the evidence used to charge him was collected under Section 702. And, just like Mohamud, Hasbajrami is a U.S. person living inside the United States. He is a resident of Brooklyn, New York.&#13;</p>
<p>Hasbajrami was allowed to request to withdraw his plea, and his lawyers argued to remove the evidence against him from court. Hasbajrami’s judge denied the request, and the case was moved to the Second Circuit Court of Appeals.&#13;</p>
<p>EFF and ACLU together <a href="https://www.eff.org/deeplinks/2017/10/eff-and-aclu-ask-appeals-court-find-section-702-surveillance-unconstitutional">urged</a> the Second Circuit Court of Appeals to make the right decision. There is opportunity for the appellate court to protect the constitutional rights of all Americans, defending their privacy and enshrining their security from warrantless search. We plead to the court to not make the same misguided decision made in <i>Mohamud v. U.S.</i>&#13;</p>
<h3><b>Wikimedia Foundation v. NSA</b></h3>
<p>The Wikimedia Foundation scored an enormous victory this year when an appeals court allowed the nonprofit’s challenge to NSA surveillance to move forward, reversing an earlier decision that threw the lawsuit out.&#13;</p>
<p>Represented by the ACLU, Wikimedia sued the NSA in 2015 for the use of its “upstream” program, the same program that EFF is suing the NSA over in <i>Jewel v. NSA</i>. Wikimedia argued that the program infringed both the First Amendment and Fourth Amendment.&#13;</p>
<p>Originally filed in the U.S. District Court for the District of Maryland, Wikimedia’s lawsuit was thrown out because the court ruled that Wikimedia could not prove it had suffered harm due to NSA surveillance. This ability to prove that a plaintiff was actually wronged by what they allege is called “standing,” and the court ruled Wikimedia—and multiple other plaintiffs—lacked it.&#13;</p>
<p>But upon appellate review, the Fourth Circuit Court of Appeals approved standing for Wikimedia in May 2017. However, the appellate court denied standing for other plaintiffs in the lawsuit, which included Human Rights Watch, The Nation Magazine, The Rutherford Institute, Amnesty International USA and more.&#13;</p>
<p>This victory on a small issue—standing—is an enormous victory in continuing the fight against NSA surveillance.&#13;</p>
<h3><b>What Next? </b></h3>
<p>The judicial system can be slow and, at times, frustrating. And while victories in things like discovery and standing may seem only procedural, they are the first footholds into future successes.&#13;</p>
<p>EFF will continue its challenges against NSA surveillance in the courts, and we are proud to stand by our partners who do the same.&#13;</p>
<p>This article is part of our Year In Review series. <a href="https://www.eff.org/2017-year-review">Read other articles about the fight for digital rights in 2017.</a>&#13;</p>
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</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/wikimedia-v-nsa">Wikimedia v. NSA</a></div><div class="field__item odd"><a href="/ru/cases/jewel">Jewel v. NSA</a></div></div></div>Thu, 28 Dec 2017 20:45:48 +000097606 at https://www.eff.orgPrivacyNSA SpyingDecoding 702: What is Section 702?Security EducationDavid RuizSurveillance Battles: 2017 in Reviewhttps://www.eff.org/ru/deeplinks/2017/12/surveillance-battles-2017-review
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>If you’ve been following EFF’s work, you’ll know that we’ve been fighting against the creeping surveillance state for over 20 years. Often, this means pushing back against the National Security Agency’s dragnet surveillance programs, but as new technology becomes available, new threats emerge.&#13;</p>
<p>Here are some of the biggest legislative fights we had in 2017.&#13;</p>
<h3 align="center"><b>FISA Section 702</b></h3>
<p>Section 702 is a surveillance authority that is part of the FISA Amendments Act of 2008. It was created as a way for the intelligence community to collect foreign intelligence from non-Americans located outside of the United States. However, the way the law is currently written allows the NSA to “<a href="https://www.eff.org/pages/Incidental-collection">incidental</a>ly” collect communications from an untold number of Americans. We say “untold” because the government has never disclosed how many law-abiding Americans have had their communications vacuumed up by the NSA and other intelligence gathering organizations. In addition to being used to prevent terrorism, Section 702 allows for that collected information to be used in ordinary law enforcement activities. As we have witnessed in several recent Congressional hearings, even members of Congress tasked with overseeing these programs <a href="https://www.eff.org/deeplinks/2017/12/fisc-assurance-wont-fly">literally don’t know</a> how many Americans have been impacted by this program because the FBI, the DOJ, and the NSA have refused repeated requests share that information.&#13;</p>
<p>Section 702 authority was set to expire on December 31, 2017, which means that Congress had a chance to make the many necessary changes needed<b> </b>to protect their constituents from excessive government surveillance. Various members of Congress have introduced some <a href="https://www.eff.org/deeplinks/2017/10/usa-rights-act-protects-us-nsa-spying">great bills</a>, but other bills <a href="https://www.eff.org/deeplinks/2017/12/house-intelligence-committee-advances-deeply-flawed-nsa-surveillance-bill">do nothing</a> to prevent unwarranted dragnet surveillance.&#13;</p>
<p>We are disappointed that Congress hasn’t prioritized having a transparent debate about how law enforcement and intelligence agencies should be using their spying authorities while also respecting Americans’ Fourth Amendment rights. Sadly, as we approached the potential sunset of Section 702 at the end of the year with no consensus in sight, Congressional leadership punted by tacking a three week extension of Section 702 into a <a href="https://www.eff.org/deeplinks/2017/12/dont-reauthorize-nsa-spying-must-pass-funding-bill">must-pass spending bill</a>. The new deadline is January 19, 2017, and we hope that this time, Congress will use this opportunity to end warrantless, unconstitutional surveillance for good.&#13;</p>
<p>No matter what happens, we stand ready to continue the fight to rein in sweeping spying programs.&#13;</p>
<h3 align="center"><b>Facial Recognition and other Biometric Screening </b></h3>
<p>In 2004, the U.S. Department of Homeland Security (DHS) began <a href="https://www.eff.org/deeplinks/2017/08/end-biometric-border-screening">biometric screening</a> of foreign citizens upon their arrival in the U.S. In 2016, DHS launched a pilot program to expand facial recognition screening to U.S. citizens, in addition to foreign travelers, on a daily international flight out of Atlanta. This summer, DHS has gone even further, and has<b> </b>started <a href="https://www.theverge.com/2017/4/18/15332742/us-border-biometric-exit-facial-recognition-scanning-homeland-security">working to expand</a> the screening to <u>all</u> travelers on certain flights out of certain airports, with the list of airports growing. Customs and Border Protections (CBP) has also <a href="https://gcn.com/articles/2017/09/12/cbp-facial-recognition.aspx">announced plans</a> to expand their facial recognition program to land borders in 2018, requiring<b> </b>any person driving into the U.S. to submit to biometric screening. DHS executives have even been <a href="https://www.theverge.com/2017/5/9/15591648/airport-facial-recognition-customs-tsa-biometric-exit">quoted</a> as saying that they would like to substitute biometric screenings at every place in the airport where we currently have to show ID.&#13;</p>
<p>While Congress did authorize automated tracking of foreign citizens as they enter and exit the U.S. in 1996, they have not authorized this intrusion into the lives of American travelers. DHS expanded these programs on their own, backed by President Trump’s <a href="https://www.politico.com/story/2017/07/13/trump-travel-ban-could-soon-be-applied-worldwide-240539">revised travel ban</a>.&#13;</p>
<p>Several Members of Congress are scrambling to codify DHS’s increased biometric surveillance, introducing<b> </b>several bills in 2017, such as Sen. Cornyn’s bill <a href="https://www.congress.gov/bill/115th-congress/senate-bill/1757">S. 1757</a>, Sen. Thune’s bill <a href="https://www.congress.gov/bill/115th-congress/senate-bill/1872">S. 1872</a>, Rep. McCaul’s bill <a href="https://www.congress.gov/bill/115th-congress/house-bill/3548?q=%7B%22search%22%3A%5B%22hr+3548%22%5D%7D&amp;r=1">H.R. 3548</a>, and others. These bills<b> </b>would both authorize these programs, and in some cases, expand them even further. Additionally, it’s possible that expanded biometric screening could be included in upcoming legislation that contains permanent changes to DACA.&#13;</p>
<p>As we have <a href="https://www.eff.org/press/releases/hearing-wednesday-electronic-frontier-foundation-testifying-house-committee-use">written</a> <a href="https://www.eff.org/issues/biometrics">extensively</a>, biometric screening, and especially its implementation as a law enforcement tool, is inherently problematic. Our faces are easy to capture and hard to change. Plus, facial recognition has significant accuracy problems, especially for non-white travelers. One of the biggest problems of this screening is data security. The Equifax database breach was a grave violation of privacy, based just on release of numbers (like dates of birth and Social Security numbers). The risk to privacy posed by breach of biometric databases is even greater. The government must answer questions about how the data will be stored, how long it will be stored, and how they will ensure that data is kept secure.&#13;</p>
<p>Our governments should not try to force us to abandon travel in order to protect the privacy of our faces. We will continue to oppose such bills that endanger Americans’ privacy, watch for biometric screening language sneaking into other bills, and work with our allies in Congress to beat back these threats to privacy.&#13;</p>
<h3 align="center"><b>Cell Site Simulators Devices</b></h3>
<p>At the beginning of 2017, we were <a href="https://www.eff.org/deeplinks/2017/02/bipartisan-congressional-oversight-committee-wants-probable-cause-warrants-0">heartened</a> when the House Oversight and Government Reform Committee (OGR) issued a bipartisan report acknowledging and detailing police abuse of cell-site simulators, also known as stingrays. OGR’s report also called on Congress to pass legislation requiring that this technology only be<b> </b>deployed based on a court-issued probable cause warrant. We agree that Congress should set forth clear guidelines like this on the limits of this authority.&#13;</p>
<p>Sadly, Congress has not yet passed this legislation, even as news broke that demonstrated how necessary these limits are. Through a FOIA request, <a href="https://www.buzzfeed.com/adolfoflores/this-is-how-many-times-the-department-of-homeland-security?utm_term=.af1Lo148b#.jvOvLXM74">Buzzfeed found</a> that DHS used cell-site simulators 1,885 times from January 2013 through to October 2017 throughout the United States. However, how and why DHS used these devices remains unclear.&#13;</p>
<p>Sen. Ron Wyden <a href="https://www.wyden.senate.gov/download/?id=F268CF50-4BF1-41A4-860A-8CED078CAB4A&amp;download=1">ask</a>ed these questions, sending a letter to U.S. Immigration and Customs Enforcement (ICE) requesting information on the agency’s use of the devices. Sen. Wyden asked what policies govern the use of stingrays in law enforcement operations, and what steps ICE takes to limit the interference on innocent Americans. ICE <a href="https://www.documentcloud.org/documents/3935329-88437-Signed-Response.html">responded</a> by saying that cell site simulators are allowed both under current law and current policy. ICE maintains that there is “virtually” no<b> </b>interference with “non-targeted” devices, though they offer no evidence to that effect. Similarly, ICE claims that their use of cell-site simulators is limited and current policy only allows their use with probable cause warrants.&#13;</p>
<p>While we are glad to know that ICE has a policy around these devices, we also know that policies can be easily changed. Given the expansion of cell-site simulator snooping under this Administration, we will continue to work with Congress to create more effective, legislative protections against law enforcement overreach.&#13;</p>
<h3 align="center"><b>Going into 2018</b></h3>
<p>As surveillance technology becomes cheaper and more accessible, law enforcement and intelligence agencies are going to continue to seek access to it, often at great cost to our privacy. Our increasingly digital lives show the growing need for ironclad privacy protections, and EFF plans to continue leading this fight for your rights in 2018 and beyond.&#13;</p>
<p>This article is part of our Year In Review series. <a href="https://www.eff.org/2017-year-review">Read other articles about the fight for digital rights in 2017.</a>&#13;</p>
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</div></div></div>Fri, 22 Dec 2017 22:11:48 +000097667 at https://www.eff.orgLegislative AnalysisPrivacyDecoding 702: What is Section 702?NSA SpyingSecurity EducationIndia McKinney Efforts to Expand NSA Spying Trip Uphttps://www.eff.org/ru/deeplinks/2017/12/momentary-victory-against-nsa-surveillance
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Since last night, the debate over how to reauthorize certain NSA surveillance authorities has seen a whirlwind of activity, culminating in the major news that the House Rules Committee <a href="https://rules.house.gov/news/announcement/meeting-announcement-hr-4478-0">postponed</a> a vote today to potentially expand NSA spying powers.&#13;</p>
<p dir="ltr">As we <a href="https://www.eff.org/deeplinks/2017/12/urgent-we-only-have-hours-left-stop-nsa-expansion-bill">wrote</a> yesterday:</p>
<p dir="ltr">"According to reports published Tuesday evening by Politico, a group of surveillance hawks in the House of Representatives is trying to ram through a bill that would extend mass surveillance by the National Security Agency. We expect a vote to happen on the House floor as early as [December 20], which means there are only a few hours to rally opposition. </p>
<p dir="ltr">The backers of this bill are attempting to rush a vote on a bill that we’ve <a href="https://www.eff.org/deeplinks/2017/11/house-intelligence-committees-nsa-surveillance-bill-includes-new-threats-and-old">criticized</a> for failing to secure Americans’ privacy. If this bill passes, we will miss the opportunity to prevent the FBI from searching through NSA databases for American communications without a warrant. Worse, nothing will be done to rein in the massive, unconstitutional surveillance of the NSA on Americans or innocent technology users worldwide."</p>
<p>With the House Rules Committee's postponed vote, this crisis is currently avoided. But the fight isn’t over.&#13;</p>
<p>We do not know the exact steps House Permanent Select Committee on Intelligence Chairman Devin Nunes, who authored the bill (H.R. 4478), will take this week. We do not know if other bills to reauthorize Section 702, originally enacted as part of the FISA Amendments Act—the NSA’s powerful surveillance authority scheduled to sunset in less than two weeks—will be introduced for a House floor vote.&#13;</p>
<p>But we do know that our voices are being heard. And we still know that we <a href="https://www.eff.org/deeplinks/2017/12/dont-reauthorize-nsa-spying-must-pass-funding-bill">stand against attempts</a> to expand NSA surveillance by hitching it to separate efforts to fund the government, a strategy that some members of Congress have considered.&#13;</p>
<p>As we wrote previously:&#13;</p>
<p>"[It] is completely unacceptable for Congressional leadership to shove Section 702 reauthorization into an end-of-year funding bill. This program invades the privacy of an <a href="https://www.eff.org/deeplinks/2017/12/fisc-assurance-wont-fly">untold </a>number of Americans. Before it can be reauthorized, Congress must undertake a transparent and deliberative process to consider the impact<br />
this NSA surveillance has on Americans’ privacy."&#13;</p>
<p>You can speak up. Call your representatives and let them know that it is unacceptable to attach H.R. 4478—or S. 2010—to any year-end spending bills. Attempts to sneak expanded NSA surveillance powers into entirely separate legislation are attempts to rob surveillance reform of its own needed debate. This hurts the American people and it removes the opportunity for open, transparent discussion.&#13;</p>
<p>Call today. Your efforts are working.&#13;</p>
<p class="take-action"><a href="https://act.eff.org/action/stop-the-expansion-of-nsa-spying">Call Now</a></p>
<p class="take-explainer">Call Your Representatives</p>
</div></div></div>Wed, 20 Dec 2017 23:01:44 +000097649 at https://www.eff.orgCall To ActionDecoding 702: What is Section 702?NSA SpyingPrivacyDavid RuizUrgent: We Only Have Hours Left to Stop the NSA Expansion Billhttps://www.eff.org/ru/deeplinks/2017/12/urgent-we-only-have-hours-left-stop-nsa-expansion-bill
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p dir="ltr">According to reports published Tuesday evening by Politico, a group of surveillance hawks in the House of Representatives is trying to ram through a bill that would extend mass surveillance by the National Security Agency. We expect a vote to happen on the House floor as early as tomorrow, which means there are only a few hours to rally opposition. </p>
<p dir="ltr">The backers of this bill are attempting to rush a vote on a bill that we’ve criticized for failing to secure Americans’ privacy. If this bill passes,we will miss the opportunity to prevent the FBI from searching through NSA databases for American communications without a warrant. Worse, nothing will be done to rein in the massive, unconstitutional surveillance of the NSA on Americans or innocent technology users worldwide.</p>
<p dir="ltr">As <a href="https://www.eff.org/deeplinks/2017/11/house-intelligence-committees-nsa-surveillance-bill-includes-new-threats-and-old?page=8">we wrote</a>, the bill, originally introduced by Chairman Devin Nunes before the House Permanent Select Committee on Intelligence, “allows warrantless search of American communications, expands how collected data can be used, and treats constitutional protections as voluntary.”</p>
<p dir="ltr">The bill would create an easy path for the NSA to restart an invasive type of surveillance (called "about" searches) that the agency voluntarily ended earlier this year because of criticisms from the FISA court. It would also give FBI agents the power to decide whether or not to seek a warrant to read American communications collected under Section 702.</p>
<p dir="ltr">Backers of this bill are rushing because they know that time is on our side. If we can rally enough voices of opposition, we can delay or defeat this vote, sending a powerful message to Congress. Every day can make a huge difference in this fight because <a href="https://www.eff.org/702-spying">Section 702, originally enacted as part of the FISA Amendments Ac</a>t—the legal authority the NSA relies on to engage in this mass surveillance—expires in 12 days.</p>
<p dir="ltr">The vote on this is likely to happen today, so there’s no time to make phone calls or send emails. We are asking people to use social media to contact their representatives. <a href="https://act.eff.org/action/urgent-we-only-have-hours-left-to-stop-the-nsa-expansion-bill">We’ve set up a tool to help you tweet at your member of Congress</a>. We also encourage you to find other social media accounts for your representatives (such as an official Facebook account) and post a comment there. </p>
<p dir="ltr" class="take-action"><a href="https://act.eff.org/action/urgent-we-only-have-hours-left-to-stop-the-nsa-expansion-bill">Tweet Now</a></p>
<p dir="ltr" class="take-explainer">Tweet at Congress</p>
</div></div></div>Wed, 20 Dec 2017 03:54:19 +000097635 at https://www.eff.orgCall To ActionDecoding 702: What is Section 702?PrivacyNSA SpyingSecurity Educationrainey ReitmanDon’t Reauthorize NSA Spying in a Must-Pass Funding Billhttps://www.eff.org/ru/deeplinks/2017/12/dont-reauthorize-nsa-spying-must-pass-funding-bill
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The next two weeks will be a flurry of activity in Congress. Before they can leave for the holidays, our government must—at minimum—pass at least one bill to keep the government running and also decide what to do about a controversial NSA spying authority called Section 702. Some legislators want to reauthorize Section 702, without meaningful reform, by attaching it to must-pass spending legislation. This is a terrible idea. The legislative process surrounding Section 702 already lacks necessary transparency and deliberation. &#13;</p>
<p>The new legislative stratagem gets complicated very quickly. Here’s what you need to know.&#13;</p>
<h3><b>Background</b></h3>
<p>On December 8<sup>th</sup>, Congress passed a temporary funding bill, or a “Continuing Resolution” (CR) to keep the government running until December 22. To prevent a government shutdown, Congress must either pass another CR by the new deadline, or ideally, finish writing the final funding bill for the rest of Fiscal Year 2018. This final funding bill is known as “the omnibus.”&#13;</p>
<p>Even though the Republican Party controls the House, the Senate, and the White House, GOP leadership has struggled to find enough consensus among their members to pass the omnibus. Instead, the government is limping along with a series of short-term CRs while avoiding hard decisions on longer term funding priorities. This constant negotiation on funding between the White House and Congressional leaders from both parties means that there is less time to negotiate other issues, like necessary reforms on Section 702 NSA spying program, which is scheduled to sunset at the end of this month.&#13;</p>
<p>Faced with multiple looming deadlines, legislators may be tempted to include Section 702 reauthorization in one of the funding bills. The allure of killing two (or more) birds with one stone often becomes overwhelming this time of year. Instead of taking the time to negotiate and navigate multiple difficult votes on various contentious bills, leadership finds it easier to find a majority only once.<b> </b>&#13;</p>
<h3><b>Who will decide to include 702 reauthorization language in the CR? </b></h3>
<p>After consulting with the various Chairmen of Committees of jurisdiction (in this case, the Intelligence and Judiciary Committees), Congressional leadership, along with the White House, will decide what will help them get the votes they need.&#13;</p>
<p>For example, a member who is not inclined to support a spending bill on its own may decide to vote “yes” on a spending bill that includes language to prohibit the NSA’s controversial “about” searching. Of course, the reverse can also be true, which is why such discussions will happen behind closed doors.&#13;</p>
<h3><b>Can anyone stop it? </b></h3>
<p>Yes and no. Individual members or groups of members (often called Caucuses) would have to tell their leadership that they would not vote for any spending package that contains language they don’t like. If the numbers work in their favor, and leadership believes them, this will keep the language out of the bill.&#13;</p>
<p>However, leadership may choose to call the members’ bluff. If the language is added over members’ objections, the members can still vote no on the whole bill. But that could cause the bill to fail and shut down the government. Government shutdowns are highly disruptive to many people, and thus politically risky. The members and the leadership take that into consideration. It’s a high-risk game of chicken—with very real and long-term consequences.<b> </b>&#13;</p>
<h3><b>Can the language be amended once it is added? </b></h3>
<p>Practically speaking, no. All the language in the CR is carefully negotiated behind closed doors, so leadership does not usually allow any amendments in case something accidentally passes that would cost them votes.&#13;</p>
<h3><b>Is there any limit to what language can be included in a CR?</b> </h3>
<p>Once again, practically speaking, no.&#13;</p>
<p>In theory, no spending bill – CR or omnibus – should contain language that isn’t related to funding the government. Of course, how we fund the government often has policy implications, which is why these bills are often so contentious and so tightly negotiated. For example, earlier this year Rep. Kevin Yoder (R-KS) <a href="http://thehill.com/policy/cybersecurity/342030-house-pushes-to-require-warrants-for-all-emails-with-appropriations">sponsored language</a> in a funding bill that would prevent law enforcement from using any taxpayer dollars to seize cloud-hosted documents (email, photos, etc) without a warrant. In practice, the policy impact of this language would have been quite similar to the <a href="https://www.eff.org/deeplinks/2017/01/congress-must-pass-long-delayed-email-privacy-bill">Email Privacy Commutations Act</a>, but Rep. Yoder’s language actually only prohibits funding these actions. Adding language that has nothing to do with government funding at all, like reauthorization of the Section 702 program, does happen, but it is rare. &#13;</p>
<p>A CR is even less appropriate than an omnibus as a vehicle to make new policy. As it is designed only to be a temporary, short-term measure, a CR is theoretically only a continuation of current funding levels, with no major funding changes and no major policy changes. In practice, this rule gets waived (at the discretion of the leadership), especially when pushed up against a deadline and when the added language brings in needed votes.&#13;</p>
<h3><b>How will we know if or what 702 reauthorization language has been added to the CR? </b></h3>
<p>Follow us <a href="EFF%20Twitter" title="https://twitter.com/eff">on Twitter</a>!&#13;</p>
<p>In normal circumstances, all legislation is supposed to be public for at least a day before Congress votes on it. Unfortunately, these are not normal circumstances.&#13;</p>
<p>When there is a difficult, tightly negotiated bill and a looming deadline (like with both the CR and Section 702 reauthorization), the House of Representatives may enact something called “martial law,” allowing leadership to move quickly through debate and final passage as soon as they have an agreement - before the media or the public have an opportunity to comment.&#13;</p>
<p>EFF is in constant communication with members interested in reforming Section 702, and we’re fighting alongside them to make sure Section 702 reauthorization does not sneak through in the dead of night. We’ll make sure to let you know when we know!&#13;</p>
<h3><b>Is This Strategem OK?</b></h3>
<p>No! While the legislative calendar may pose a challenge, it is completely unacceptable for Congressional leadership to shove Section 702 reauthorization into an end-of-year funding bill. This program invades the privacy of an <a href="https://www.eff.org/deeplinks/2017/12/fisc-assurance-wont-fly">untold</a> number of Americans. Before it can be reauthorized, Congress must undertake a transparent and deliberative process to consider the impact this NSA surveillance has on Americans’ privacy.&#13;</p>
<p>It is troubling that a secretive NSA surveillance program may be reauthorized in a secret legislative backroom deal. But this program is too important to be hidden in a big funding bill, and members shouldn’t be forced to choose between shutting down the federal government or violating the Fourth Amendment.</p>
</div></div></div>Thu, 14 Dec 2017 21:28:11 +000097599 at https://www.eff.orgLegislative AnalysisPrivacyDecoding 702: What is Section 702?NSA SpyingSecurity EducationIndia McKinneyFISC Assurances on Spying Leave Too Many Questions Unansweredhttps://www.eff.org/ru/deeplinks/2017/12/fisc-assurance-wont-fly
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Last week, FBI Director Christopher Wray faced questions from the House Judiciary Committee about how his department is implementing one of the government’s most powerful surveillance tools. Despite repeated bipartisan requests, Director Wray refused to tell the Members of the Committee how many Americans have been impacted by Section 702, enacted as part of the FISA Amendments Act. This isn’t the first time the FBI has refused to answer to Congress.&#13;</p>
<p>EFF has long held that Section 702 is being used to violate the privacy guaranteed by the Fourth Amendment. Section 702 authorizes the acquisition of foreign intelligence information; however, because many Americans communicate with foreign persons outside the United States every day, our communications are also being captured and read without a warrant. &#13;</p>
<p>How many Americans have had their communications “<a href="https://www.eff.org/pages/Incidental-collection">incidentally collected</a>” under Section 702? We don’t know. In fact, not even Congress knows. Although the House Judiciary Committee has sent several bipartisan letters to the Office of the Director of National Intelligence asking this exact question, ODNI has refused to respond. &#13;</p>
<p>At the hearing last week, Rep. Ted Poe (R-TX), asked Director Wray to provide information on the number of Americans impacted by Section 702, saying, “this committee has asked for a long time to give us that information. My opinion is that the FBI and the intelligence service is back-walking that information because they know FISA [i.e. Section 702] comes up at the end of this year, and then Congress will just reauthorize without knowing how many Americans are searched.” &#13;</p>
<p>The <a href="https://www.eff.org/deeplinks/2017/10/fbi-director-wray-wrong-about-section-702-surveillance">FBI has</a> also refused to estimate how often it warrantlessly queries databases containing incidentally collected communications using Americans’ identifiers as search terms, a practice known as “<a href="https://www.endthebackdoor.com/">backdoor search</a>.” Rep. Poe pressed Director Wray on backdoor searches as well, giving him an ultimatum: “I hope you can provide us that information before we reauthorize FISA, otherwise I'm going to vote against FISA.”&#13;</p>
<p>But Wray <i>still</i> didn’t answer these questions. Instead, he claimed that “every court” to have heard arguments against how the government uses Section 702 has found “no abuse” and concluded that it’s being done “consistent with the Fourth Amendment.”&#13;</p>
<p>Director Wray is wrong. In 2016, the Ninth Circuit Court of Appeals upheld the use of Section 702 in <a href="https://www.eff.org/press/releases/eff-urges-supreme-court-take-unconstitutional-nsa-surveillance-reverse-dangerous"><i>United States v. Mohamud</i></a>, but the court specifically said that its decision did not “involve the retention and querying of incidentally collected communications,” i.e. backdoor searches. And when the Foreign Intelligence Surveillance Court of Review (FISCR) upheld warrantless acquisition of foreigners’ communications under an earlier law, it did so because it believed the government would “not maintain a database of incidentally collected information from non-targeted United States persons” that it could search without a warrant.&#13;</p>
<p>Meanwhile, the NSA and the FBI won’t even tell Congress how many non-targeted United States persons are impacted by “incidentally collected” information under the 702 program. The FBI may believe it is using Section 702 authority “lawfully and appropriately for the good and protection of the American people,” as Director Wray put it. But using a surveillance power lawfully and appropriately means following the Constitution, answering reasonable questions from Congressional oversight committees, and ensuring that all Americans have the freedom to communicate without fear of government surveillance. &#13;</p>
<p>Chairman Goodlatte agreed with Rep. Poe, saying, “This is a reasonable request from the gentleman from Texas. It has been made in varying forms by this committee in a bipartisan way in the past, and we have not yet received the answers to those questions…. We think that you need to be forthcoming on this.” &#13;</p>
<p>Bottom line: if Section 702 is going to be allowed to continue, Congress must consider the <a href="///localhost/%E2%80%A2https/::www.eff.org:deeplinks:2017:11:nsa-internet-surveillance-under-section-702-violates-first-amendment">impact it has on Americans’ privacy</a>. The FBI (and the NSA) need to answer the question. </p>
</div></div></div>Wed, 13 Dec 2017 02:45:35 +000097596 at https://www.eff.orgCommentaryNSA SpyingSecurity EducationIndia McKinneyHouse Intelligence Committee Advances a Deeply Flawed NSA Surveillance Billhttps://www.eff.org/ru/deeplinks/2017/12/house-intelligence-committee-advances-deeply-flawed-nsa-surveillance-bill
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>A bill to extend one of the NSA’s most powerful surveillance tools, and further peel back American civil liberties, was approved today by the House Permanent Select Committee on Intelligence in a strict party line vote (12-8), with Republican members voting in the majority.&#13;</p>
<p>The committee and the public had less than 48 hours to read and discuss the bill. Democratic committee members openly criticized the short timeframe, amongst other problems. &#13;</p>
<p>“This bill was shared with my office less than 24 hours ago, and here we are marking up legislation that has incredibly profound constitutional implications for all Americans,” said Rep. Jackie Speier (D-CA). She continued: “We could be sitting here, thoughtfully debating the precarious balance between security and civil liberties and the best path forward, but instead, the majority has decided to do otherwise.”&#13;</p>
<p>The bill is the FISA Amendments Reauthorization Act of 2017, and it was introduced on the evening of November 30 by House Intelligence Committee Chairman Devin Nunes (R-CA). It is the latest legislative attempt to reauthorize Section 702, one of the NSA’s most powerful surveillance authorities that allows for the targeting and collection of communications of non-U.S. persons not living in the United States. The NSA also uses Section 702 to justify the “incidental” collection of American communications that are predictably swept up during foreign intelligence surveillance, too.&#13;</p>
<p>The bill has many problems that you can read about <a href="https://www.eff.org/deeplinks/2017/11/house-intelligence-committees-nsa-surveillance-bill-includes-new-threats-and-old">here</a>, from potentially restarting one of the NSA’s most invasive forms of surveillance to treating constitutional rights as optional.&#13;</p>
<p>But instead of probing these privacy defects in the bill, much of the Friday morning hearing was dominated by heated partisan debate around a single topic that one Democratic committee member described as “political dynamite.”&#13;</p>
<p>That issue is “unmasking,” the process by which the identities of Americans whose communications are collected through the broader FISA law are revealed at request by government officials. The Nunes bill includes several oversight provisions for this process.&#13;</p>
<p>According to the committee’s Ranking Member Adam Schiff (D-CA), the issue has nothing to do with Section 702, and it has no rightful place in the Nunes bill.&#13;</p>
<p>Close to one hour into the disagreements, Rep.Denny Heck (D-WA) bemoaned the lost opportunity to have a conversation on the balance between national security and civil liberties.&#13;</p>
<p>“I’m voting no because I believe that this bill sets up a false choice between whether or not we can be secure, or whether or not we can protect our rights to privacy, especially under the Fourth Amendment,” Rep. Heck said. “Benjamin Franklin famously quipped, and I’m amazed that he has not yet been quoted today, that those who would trade privacy for security deserve neither.”&#13;</p>
<p>Rep. Heck continued: “I find that the weight of this bill trades off privacy for security, and I believe that is a false choice because I believe we can have both.”&#13;</p>
<p>We agree. The Nunes bill threatens the privacy of American communications and potentially opens up U.S. persons to an invasive type of NSA surveillance that the agency voluntarily ended this year.&#13;</p>
<p>The Nunes bill goes backward. Surveillance reform must move forward.</p>
</div></div></div>Fri, 01 Dec 2017 19:38:27 +000097519 at https://www.eff.orgLegislative AnalysisPrivacyDecoding 702: What is Section 702?NSA SpyingDavid RuizHouse Intelligence Committee’s NSA Surveillance Bill Includes New Threats and Old https://www.eff.org/ru/deeplinks/2017/11/house-intelligence-committees-nsa-surveillance-bill-includes-new-threats-and-old
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Thrown last-minute into a torrent of competing legislation, a new bill meant to expand the NSA’s broad surveillance powers is the most recent threat to American privacy. It increases who is subject to surveillance, allows warrantless search of American communications, expands how collected data can be used, and treats constitutional protections as voluntary.&#13;</p>
<p>The bill must be stopped immediately. There is little time: despite the bill’s evening release yesterday, November 29, a committee is scheduled to markup the bill tomorrow, December 1.&#13;</p>
<p>The bill is called the <a href="https://intelligence.house.gov/uploadedfiles/fisa_amendments_reauthorization_act_of_2017_bill_text.pdf">FISA Amendments Reauthorization Act of 2017</a>, and it was introduced by Rep. Nunes (R-CA), the Chair of the House Permanent Select Committee on Intelligence. It shares the same name as <a href="https://www.eff.org/deeplinks/2017/11/fisa-amendments-reauthorization-act-restricts-congress-not-surveillance">another bill introduced in the Senate</a> in October.&#13;</p>
<p>Both bills are attempts to reauthorize Section 702 of the FISA Amendments Act, a powerful surveillance authority that allows the NSA to target and collect communications of non-U.S. persons living outside the United States. Section 702 predictably causes the incidental collection of American communications that are swept up during foreign intelligence surveillance, too.&#13;</p>
<p>These are some of the most glaring problems with this House bill.&#13;</p>
<h3><b>New Potential Surveillance Targets</b></h3>
<p>The Nunes bill expands the statutory terms “foreign power” and “agent of a foreign power”—both of which can be approved for NSA surveillance—to include a broad set of cyber-related activities. These activities include efforts to impair the “confidentiality, integrity, or availability of computers,” so long as those activities threaten the national defense or security of the United States.&#13;</p>
<p>But, according to the bill, surveillance can be approved for individuals not actually acting on behalf of a foreign power. Instead, those individuals must simply either knowingly aid or abet another person who is performing “international malicious cyber activity.”&#13;</p>
<p>This expansion of potential surveillance targets would extend not just to the NSA’s Section 702 surveillance, but also to all other kinds of foreign intelligence gathering. In this regard, far from reforming the federal government’s surveillance activities, the Nunes bill would significantly expand them. &#13;</p>
<h3><b>An Optional “Fix” to the Backdoor Search Loophole</b></h3>
<p>Under Section 702, the NSA targets foreign individuals located outside the United States. Predictably, communications written and sent by Americans are also swept up in that collection. Those communications are then stored in a massive database that can be searched by other intelligence agencies, including the FBI and CIA. When those agencies search the data—even when it belongs to U.S. persons—they do not obtain a warrant.&#13;</p>
<p>These searches are called “backdoor” searches because they avoid the constitutional warrant requirement provided to U.S. persons by the Fourth Amendment.&#13;</p>
<p>While some of the other pending Section 702 reauthorization bills have proposed warrant requirements on backdoor searches of Americans’ communications, the Nunes bill gives the government the <i>option</i> whether or not to seek a warrant before reading these communications.&#13;</p>
<p>From the bill: “the Federal Bureau of Investigation may apply for an order of the [Foreign Intelligence Surveillance Court]” to approve access to such communications.&#13;</p>
<p>Constitutional rights are guaranteed, not optional.&#13;</p>
<h3><b>Other Problems</b></h3>
<p>Borrowing from its Senate-side sibling, the Nunes bill provides guidance on how to restart “about” collection, an invasive form of NSA surveillance that the agency ended earlier this year. Also, in defining “about” collection, the bill includes language that suggests the NSA can target “a facility, place, premises or property” for surveillance. This could mean that the NSA has the authority to target entire buildings, houses, or data centers populated by U.S. persons or their communications.&#13;</p>
<p>To learn more about what’s wrong with the Nunes bill, check out the <a href="https://www.aclu.org/letter/coalition-letter-opposing-fisa-amendments-reauthorization-act-2017">opposition letter</a> that EFF joined, along with dozens of other groups.&#13;</p>
<h3><b>What Now?</b></h3>
<p>Your voice is needed immediately. Rep. Nunes’ FISA Amendments Reauthorization Act of 2017 will be sent to markup by the House Permanent Select Committee on Intelligence tomorrow, on December 1. That is a remarkably short time for this process.&#13;</p>
<p>Call and contact your representatives today to stop this bill. Tell them it is unacceptable.</p>
</div></div></div>Thu, 30 Nov 2017 23:23:07 +000097512 at https://www.eff.orgCall To ActionPrivacyNSA SpyingDecoding 702: What is Section 702?David RuizNSA Internet Surveillance Under Section 702 Violates the First Amendmenthttps://www.eff.org/ru/deeplinks/2017/11/nsa-internet-surveillance-under-section-702-violates-first-amendment
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The First Amendment is too often overlooked in discussions of the National Security Agency’s vast surveillance authorities. But as Congress considers whether to reauthorize <a href="https://www.eff.org/702-spying">Section 702 of FISA</a> this winter, we must remember that it’s not just our Fourth Amendment rights to privacy that are in the crosshairs, but also our First Amendment rights. These rights to anonymously speak, associate, access information, and engage in political activism are the bedrock of our democracy, and they’re endangered by the NSA’s pervasive surveillance.&#13;</p>
<p>The NSA uses Section 702 to justify ongoing programs to siphon off copies of vast amounts of our communications directly from the Internet backbone as well as require system-wide searches across the information collected by major Internet companies like Google, Facebook, and Apple. &#13;</p>
<p>So how does the First Amendment come to apply to mass surveillance? To understand this, we need to begin with a little history of the civil rights movement. &#13;</p>
<p>As part of the backlash to the Supreme Court’s ruling striking down segregation in schools, the Attorney General of Alabama, John Patterson, brought a lawsuit against a leading civil rights organization, the National Association for the Advancement of Colored People (NAACP). The lawsuit alleged that the NAACP violated a state law requiring “foreign corporations” to file certain paperwork and get approval before practicing business in Alabama. The NAACP is a nonprofit membership organization; it didn’t file the paperwork because it believed it was exempt. While the NAACP fought the suit, the state issued a subpoena demanding detailed records from the NAACP, including membership lists and bank records. The NAACP refused to surrender its membership lists, fearing retaliatory consequences for its members. Because of this refusal, the court fined the NAACP $10,000, which after five days was raised to $100,000. The NAACP continued to fight the order for two years until the Supreme Court took up the issue, never surrendering its membership lists.&#13;</p>
<p>Ultimately the NAACP was vindicated. The Supreme Court <a href="https://www.law.cornell.edu/supremecourt/text/357/449">recognized</a> that the First Amendment protected the associational privacy interests of NAACP members. It directly recognized that freely associating for advocacy or other purposes is a fundamental right. It noted that state invasions of privacy could infringe on that right: “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech… Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”&#13;</p>
<p>The Supreme Court found that the “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”&#13;</p>
<p>In short, we all have the right to engage in associate with one another and to join and communicate with political and religious groups free from government surveillance.&#13;</p>
<p>As our society has moved online, our associations have become digital in nature. Signing up for a membership or learning about an advocacy group often happens over a website or app. Members of modern political groups coordinate donations, activities, and information over social networks, email, and websites. When the NSA—either by itself or by working with corporate “partners”—collects the digital communications and browsing history of countless individuals, it’s also obtaining records of innocent Americans visiting activism websites, becoming members of advocacy groups, and coordinating social movements. EFF also raised this argument in our case against the mass telephone records collection by the NSA (<a href="https://www.eff.org/deeplinks/2015/05/usa-freedom-act-passes-what-we-celebrate-what-we-mourn-and-where-we-go-here">substantially narrowed in 2015</a>) <i><a href="https://www.eff.org/cases/first-unitarian-church-los-angeles-v-nsa">First Unitarian Church of Los Angeles v NSA</a>.</i> &#13;</p>
<p>The surveillance of our communications systems, and thereby the surveillance of our communications, infringes on the very rights of private association upheld by the Supreme Court in 1958. &#13;</p>
<p>So while the Fourth Amendment concerns about 702 and mass surveillance are important, they are not the only problem created by the law. And as Alex Abdo, an attorney at the Knight First Amendment Institute at Columbia University, argues that when it comes to confronting government surveillance, we shouldn’t expect the Fourth Amendment alone to protect our First Amendment interests. He <a href="https://www.yalelawjournal.org/forum/why-rely-on-the-fourth-amendment-to-do-the-work-of-the-first">recently wrote</a> that “The Fourth Amendment, unlike the First, is blind to the cumulative effects of invasions of privacy that are small in isolation but substantial in combination.”&#13;</p>
<p>Those cumulative effects are especially felt when it comes to the right to publish and access information freely. While the government may be forbidden from censoring online speakers and readers, the cumulative impact of pervasive digital surveillance has a chilling effect on online communities. The specter of government surveillance quells engagement in online forums, social networks, and blogs that discuss controversial, political, or unpopular positions. Knowing that the government is keeping a digital dossier of comments we leave online and articles we digitally share creates an environment in which speakers hesitate to engage in online political advocacy.&#13;</p>
<p>Readers also hesitate to visit websites that may be seen as out of favor with the government, whether that’s Al Jazeera or CNN or EFF’s own site, knowing that their visit may be recorded in a government database for years to come. &#13;</p>
<p>The NSA’s digital surveillance of countless law-abiding Americans also indirectly affects another key First Amendment right: our right to assembly. Today’s modern protest movements are often organized and fueled by social media and digital communication, where activists coordinate across a wide range of physical locations. The NSA’s pervasive digital surveillance challenges our values as a society that respects and safeguards the right to plan and participate in protests and other political activity, rights which are themselves baked into the First Amendment.&#13;</p>
<p>The pervasive digital surveillance programs of the NSA chip away at the First Amendment protections that underpin our democracy. As Congress considers whether to reauthorize or reform Section 702 surveillance in the coming weeks, we urge them to remember that their choice will not just impact the privacy of Americans, it will have a profound impact on freedom of speech, association, and assembly protected by the First Amendment and ultimately, upon our democracy itself.&#13;</p>
<p><a href="https://act.eff.org/action/stop-the-burr-bill-from-extending-nsa-spying-8-years" class="take-action">Contact Congress today</a> to speak out against NSA surveillance.&#13;</p>
<p><em> </em></p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/wikimedia-v-nsa">Wikimedia v. NSA</a></div><div class="field__item odd"><a href="/ru/cases/jewel">Jewel v. NSA</a></div><div class="field__item even"><a href="/ru/cases/first-unitarian-church-los-angeles-v-nsa">First Unitarian Church of Los Angeles v. NSA</a></div></div></div>Wed, 22 Nov 2017 20:54:25 +000097462 at https://www.eff.orgCommentaryNSA SpyingDecoding 702: What is Section 702?Free Speechrainey ReitmanThe Senate’s Liberty Act Helps Close the “Backdoor” https://www.eff.org/ru/deeplinks/2017/11/senates-liberty-act-helps-close-backdoor
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Take the language of one NSA surveillance reauthorization bill and add a few strong reform proposals from another, and what do you get? A bill that helps protect Americans from the warrantless search of the content of their emails, text messages, and digital communications.&#13;</p>
<p>On November 17, Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) introduced the <a href="https://www.leahy.senate.gov/imo/media/doc/USALibertyActText.pdf">USA Liberty Act (S. 2158)</a> into the Senate. It is based on <a href="https://www.eff.org/deeplinks/2017/10/usa-liberty-act-wont-fix-whats-most-broken-nsa-internet-surveillance">legislation of the same name</a> introduced in October by House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI). &#13;</p>
<p>EFF supports this legislation and welcomes the additional protections included.&#13;</p>
<p>Both the House-side and Senate-side USA Liberty Act seek to reauthorize Section 702 of the FISA Amendments Act, an NSA surveillance tool scheduled to expire at the end of this year. Section 702 permits the NSA to target electronic surveillance at non-U.S. persons located outside the United States. But when the NSA sweeps up emails and text messages of foreign targets, it predictably also collects messages written by U.S. persons. These communications are stored in NSA databases as well as those of other intelligence agencies, such as the FBI and CIA. When FBI agents search through Section 702-collected data in FBI systems—even when data belongs to U.S. persons—they do not obtain a warrant.&#13;</p>
<p>These unconstitutional searches of Americans’ communications, which skirt the Fourth Amendment requirement of a warrant, are called “backdoor” searches.&#13;</p>
<p>The Senate-side USA Liberty Act restricts these searches by borrowing an approach from a separate amendment made for the <a href="https://www.eff.org/deeplinks/2017/11/fisa-amendments-reauthorization-act-restricts-congress-not-surveillance">FISA Amendments Reauthorization Act of 2017</a>, a second Section 702 reauthorization bill before the Senate. Though not identical in language, both the Senate-side USA Liberty Act and the amendment to the FISA Amendments Reauthorization Act place certain warrant requirements on backdoor searches.&#13;</p>
<p>According to the Senate-side USA Liberty Act, if government agents want to read Section 702-collected communications belonging to U.S. persons, they first need to obtain a warrant from the Foreign Intelligence Surveillance Court (FISC), which provides judicial oversight on Section 702 surveillance. The bill requires the FISC to approve warrants based on whether there is probable cause to believe that the requested Section 702-collected communications contain evidence of a crime, or concerns an “agent of a foreign power.”&#13;</p>
<p>Importantly, this backdoor search warrant requirement applies even if agents are searching for foreign intelligence information—a requirement not available in the House-side bill. That bill’s exception for foreign intelligence searches seriously undercuts the value of its warrant requirement. &#13;</p>
<p>Unfortunately, the Senate-side USA Liberty Act’s warrant requirement applies only to the content of communications, and does not also apply to metadata. According to the bill, government agents who want to access Section 702-collected data related to “dialing, routing, addressing, or signaling information” only need to obtain approval from the Attorney General and show the information is relevant to an investigation. While a warrant requirement is preferred, a relevance test and high-level review are significant improvements over current practice.&#13;</p>
<p>The Senate-side USA Liberty Act, like its House sibling, also codifies the end of “about” collection, a highly intrusive type of surveillance that the NSA voluntarily ended this year after receiving criticism from the FISC. But where the House-side bill only ends this practice through 2023, the Senate-side bill ends it permanently.&#13;</p>
<p>The Senate-side bill has another improvement: it explicitly grants backdoor search protections to “persons reasonably believed to be located in the United States.” This means that foreign individuals inside the United States will have the same backdoor search protections on their communications and metadata as those offered to U.S. citizens and permanent residents. The Senate-side bill is rare in codifying these protections.&#13;</p>
<p>Sen. Ron Wyden (D-OR), the author of a separate, strong surveillance reform bill called the <a href="https://www.eff.org/deeplinks/2017/10/usa-rights-act-protects-us-nsa-spying">USA Rights Act</a>—which also extends protections to foreigners inside the United States—praised Sens. Leahy and Lee, and their work.&#13;</p>
<p>“I applaud Senators Lee and Leahy for their proposal, which will create meaningful new protections for Americans’ rights, in particular by seriously addressing the problem of warrantless backdoor searches of Americans’ communications,” Wyden said. “While I believe the USA Rights Act represents the best solution to reforming Section 702 of FISA, the Lee-Leahy bill deserves full consideration by the U.S. Senate.”&#13;</p>
<p>We agree. </p>
</div></div></div>Wed, 22 Nov 2017 01:36:28 +000097461 at https://www.eff.orgLegislative AnalysisPrivacyNSA SpyingDecoding 702: What is Section 702?David RuizThe FISA Amendments Reauthorization Act Restricts Congress, Not Surveillancehttps://www.eff.org/ru/deeplinks/2017/11/fisa-amendments-reauthorization-act-restricts-congress-not-surveillance
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The FISA Amendments Reauthorization Act of 2017—legislation meant to extend government surveillance powers—squanders several opportunities for meaningful reform and, astonishingly, manages to push civil liberties backwards. The bill is a gift to the intelligence community, restricting surveillance reforms, not surveillance itself.&#13;</p>
<p>The <a href="https://www.congress.gov/bill/115th-congress/senate-bill/2010/text">bill</a> (S. 2010) was introduced October 25 by Senate Select Committee on Intelligence Chairman Richard Burr (R-NC) as an attempt to reauthorize Section 702 of the FISA Amendments Act. That law authorizes surveillance that ensnares the communications of countless Americans, and it is the justification used by agencies like the FBI to search through those collected American communications without first obtaining a warrant. Section 702 will expire at the end of this year unless Congress reauthorizes it.&#13;</p>
<p>Other proposed legislation in the House and Senate has used Section 702’s sunset as a moment to move surveillance reform forward, demanding at least minor protections to how 702-collected American communications are accessed. In contrast, Senator Burr’s bill uses Section 702’s sunset as an opportunity codify some of the intelligence community’s more contentious practices while also neglecting the refined conversations on surveillance happening in Congress today. &#13;</p>
<p>Here is a breakdown of the bill.&#13;</p>
<h2><b>“About” Collection</b></h2>
<p>Much of the FISA Amendments Reauthorization Act (the “Burr bill” for short) deals with a type of surveillance called “about” collection, a practice in which the NSA searches Internet traffic for any mentions of foreign intelligence surveillance targets. As an example, the NSA could search for mentions of a target’s email address. But the communications being searched do not have to be addressed to or from that email address, the communications would simply need to include the address in their text. This is not normal for communications surveillance.&#13;</p>
<p>Importantly, nothing in Section 702 today mentions or even hints at “about” collection, and it wasn’t until 2013 that we learned about it. A 2011 opinion from the Foreign Intelligence Surveillance Court—which provides judicial review for the Section 702 program—found this practice to be <a href="https://www.eff.org/document/october-3-2011-fisc-opinion-holding-nsa-surveillance-unconstitutional" target="_blank">unconstitutional</a> without strict post-collection rules to limit its retention and use.&#13;</p>
<p>Indeed, it is a practice the <a href="https://www.eff.org/deeplinks/2017/04/end-nsas-about-searches-just-beginning">NSA ended in April</a> precisely “to reduce the chance that it would acquire communications of U.S. persons or others who are not in direct contact with a foreign intelligence target.” Alarmingly, it is a practice the FISA Amendments Reauthorization Act defines expansively and provides guidelines for restarting.&#13;</p>
<p>According to the bill, should the Attorney General and the Director of National Intelligence decide that “about” collection needs to start up again, all they need to do is ask specified Congressional committees. Then, a 30-day clock begins ticking. It’s up to Congress to act before the clock stops.&#13;</p>
<p>In those 30 days, at least one committee—including the House Judiciary Committee, the House Permanent Select Committee on Intelligence, the Senate Judiciary Committee, and the Senate Select Committee on Intelligence—must draft, vote, and pass legislation that specifically <i>disallows</i> the continuation of “about” collection, working against the requests of the Attorney General and the Director of National Intelligence.&#13;</p>
<p>If Congress fails to pass such legislation in 30 days, “about” collection can restart.&#13;</p>
<p>The 30-day period has more restrictions. If legislation is referred to any House committee because of the committee’s oversight obligations, that committee must report the legislation to the House of Representatives within 10 legislative days. If the Senate moves legislation forward, “consideration of the qualifying legislation, and all amendments, debatable motions, and appeals in connection therewith, shall be limited to not more than 10 hours,” the bill says.&#13;</p>
<p>Limiting discussion on “about” collection to just 10 hours—when members of Congress have struggled with it for years—is reckless. It robs Congress of the ability to accurately debate a practice whose detractors even include the Foreign Intelligence Surveillance Court (FISC)—the judicial body that reviews and approves Section 702 surveillance.&#13;</p>
<p>Worse, the Burr bill includes a process to skirt legislative approval of “about” collection in emergencies. If Congress has not already disapproved “about” collection within the 30-day period, and if the Attorney General and the Director of National Intelligence determine that such “about” collection is necessary for an emergency, they can obtain approval from the FISC without Congress.&#13;</p>
<p>And if during the FISC approval process, Congress passes legislation preventing “about” collection—effectively creating both approval and disapproval from two separate bodies—the Burr bill provides no clarity on what happens next. Any Congressional efforts to protect American communications could be thrown aside.&#13;</p>
<p>These are restrictions on Congress, not surveillance—as well as an open invitation to restart “about” searching.&#13;</p>
<h2><b>What Else is Wrong?</b></h2>
<p>The Burr bill includes an 8-year sunset period, the longest period included in current Section 702 reauthorization bills. The <a href="https://www.eff.org/deeplinks/2017/10/usa-liberty-act-wont-fix-whats-most-broken-nsa-internet-surveillance">USA Liberty Act</a>—introduced in the House—sunsets in six years. The <a href="https://www.eff.org/deeplinks/2017/10/usa-liberty-act-wont-fix-whats-most-broken-nsa-internet-surveillance">USA Rights Act</a>—introduced in the Senate—sunsets in four.&#13;</p>
<p>The Burr bill also allows Section 702-collected data to be used in criminal proceedings against U.S. persons so long as the Attorney General determines that the crime involves a multitude of subjects. Those subjects include death, kidnapping, seriously bodily injury, incapacitation or destruction of critical infrastructure, and human trafficking. The Attorney General can also determine that the crime involves “cybersecurity,” a vague term open to broad abuse.&#13;</p>
<p>The Attorney General’s determinations in these situations are not subject to judicial review.&#13;</p>
<p>The bill also includes a small number of reporting requirements for the FBI Director and the FISC. These are minor improvements that are greatly outweighed by the bill’s larger problems.&#13;</p>
<p><b>No Protections from Warrantless Searching of American Communications</b>&#13;</p>
<p>The Burr bill fails to protect U.S. persons from warrantless searches of their communications by intelligence agencies like the FBI and CIA.&#13;</p>
<p>The NSA conducts surveillance on foreign individuals living outside the United States by collecting communications both sent to and from them. Often, U.S. persons are communicating with these individuals, and those communications are swept up by the NSA as well. Those communications are then stored in a massive database that can be searched by outside agencies like the FBI and CIA. These unconstitutional searches do not require a warrant and are called “backdoor” searches because they skirt U.S. persons’ Fourth Amendment rights.&#13;</p>
<p>The USA Liberty Act, which we have written extensively about, creates a warrant requirement when government agents look through Section 702-collected data for evidence of a crime, but not for searches for foreign intelligence. The USA Rights Act creates warrant requirements for all searches of American communications within Section 702-collected data, with “emergency situation” exemptions that require judicial oversight.&#13;</p>
<p>The Burr bill offers nothing.&#13;</p>
<p><b>No Whistleblower Protections</b>&#13;</p>
<p>The Burr bill also fails to extend workplace retaliation protections to intelligence community contractors who report what they believe is illegal behavior within the workforce. This protection, while limited, is <a href="https://www.eff.org/deeplinks/2017/10/whistleblower-protections-usa-liberty-act-not-enough">offered by the USA Liberty Act</a>. The USA Rights Act takes a different approach, approving new, safe reporting channels for internal government whistleblowers.&#13;</p>
<h2><b>What’s Next? </b></h2>
<p>The Burr bill has already gone through markup in the Senate Select Committee on Intelligence. This means that it could be taken up for a floor vote by the Senate.&#13;</p>
<p>Your voice is paramount right now. As 2017 ends, Congress is slammed with packages on debt, spending, and disaster relief—all which require votes in less than six weeks. To cut through the log jam, members of Congress could potentially attach the Burr bill to other legislation, robbing surveillance reform of its own vote. It’s a maneuver that Senator Burr himself, according to a Politico report, approves.&#13;</p>
<p>Just because this bill is ready, doesn’t mean it’s good. Far from it, actually.&#13;</p>
<p>We need your help to stop this surveillance extension bill. Please tell your Senators that the FISA Amendments Reauthorization Act of 2017 is unacceptable.&#13;</p>
<p>Tell them surveillance requires reform, not regression. &#13;</p>
<p class="take-action" align="center"><a href="https://act.eff.org/action/stop-the-burr-bill-from-extending-nsa-spying-8-years">TAKE ACTION</a></p>
<p class="take-explainer"><a href="https://act.eff.org/action/stop-the-burr-bill-from-extending-nsa-spying-8-years">STOP THE BURR BILL FROM EXTENDING NSA SPYING 8 YEARS</a></p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/jewel">Jewel v. NSA</a></div></div></div>Fri, 17 Nov 2017 23:16:50 +000097419 at https://www.eff.orgLegislative AnalysisPrivacyNSA SpyingDecoding 702: What is Section 702?David RuizHouse Judiciary Committee Forced Into Difficult Compromise On Surveillance Reformhttps://www.eff.org/ru/deeplinks/2017/11/house-judiciary-committee-forced-difficult-compromise-surveillance-reform
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The House Judiciary Committee on Wednesday approved the USA Liberty Act, a surveillance reform package introduced last month by House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Ranking Member John Conyers (D-MI). The bill is seen by many as the best option for reauthorizing and reforming Section 702 of the FISA Amendments Act of 2008, which is set to expire in less than two months.&#13;</p>
<p>Some committee members described feeling forced to choose between supporting stronger surveillance reforms or advancing the Liberty Act, and voiced their frustration about provisions that only partly block the warrantless search of Americans’ communications when an amendment with broader surveillance reforms was introduced by Reps. Zoe Lofgren (D-CA) and Ted Poe (R-TX). Complicating their deliberations was the fact that the Senate Select Committee on Intelligence has already reported out a bill with far fewer surveillance protections.&#13;</p>
<p>Ranking Member Conyers reiterated the conundrum: “We have been assured in explicit terms that if we adopt this amendment today, leadership will not permit this bill to proceed to the house floor.”&#13;</p>
<p>He continued: “We have an opportunity to enact some meaningful reform. The alternative is no reform, and after all the work that we’ve put in, I don’t want this amendment to endanger the underlying legislation.”&#13;</p>
<p>Rep. Jerry Nadler (D-NY) summed up much of the internal conflict: “I rise in opposition to this amendment, though I wish I didn’t have to.”&#13;</p>
<p>Rep. Sheila Jackson Lee (D-TX) also appeared frustrated with the situation: “I’ll put on record that I resent being held hostage by leadership that does not know the intensity of the work and the responsibilities of the judiciary committee.”&#13;</p>
<p>When asked to clarify her vote in advancing the USA Liberty Act, Jackson Lee said “I am perplexed, but will be working to join in moving the bill forward.”&#13;</p>
<p>Rep. Jordan (R-OH) spoke up, too: “We’re the Judiciary Committee, charged with one thing and one thing only: defend the Constitution. Respect the Constitution. Adhere to the amendments in that great document, particularly, today, the Fourth Amendment. This is a darned good amendment.”&#13;</p>
<p>Rep. Ted Lieu (D-CA) also invoked his Constitutional duty: “Ultimately it’s important that we support the Constitution. That’s why we’re here. That’s the oath we took. I’m going to support the amendment.”&#13;</p>
<p>We appreciate the votes and the voices of Reps. Louie Gohmert (R-TX), Raúl Labrador (R-ID), Andy Biggs (R-AZ), Steve Cohen (D-TN), Ted Deutch (D-FL), David Cicilline (D-RI), Pramila Jayapal (D-WA), Jamie Raskin (D-MD), Conyers, Nadler, Jordan, Poe, Lofgren and Lieu.</p>
</div></div></div>Fri, 10 Nov 2017 02:19:50 +000097375 at https://www.eff.orgLegislative AnalysisDecoding 702: What is Section 702?NSA SpyingPrivacyDavid RuizSen. Feinstein Supports "Backdoor" Warrants, So Why Don’t Reps. Nunes and Schiff?https://www.eff.org/ru/deeplinks/2017/11/sen-feinstein-supports-back-door-warrants-so-why-dont-reps-nunes-and-schiff
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>As the deadline for renewing and reforming key portions of the NSA’s spying apparatus looms less than two months away, two of the most important members of the House Intelligence Committee have stayed remarkably quiet in the conversation.&#13;</p>
<p>Congress just introduced multiple bills to extend Section <a href="https://www.eff.org/702-spying">702 of the Foreign Intelligence Surveillance Act</a>, a law that authorizes controversial NSA surveillance programs and is set to expire at the end of this year. Some of the bills include various ways to fix what is called the "backdoor search" loophole. Currently, the NSA "incidentally" collects the communications of countless Americans and stores those communications in vast databases. The FBI routinely searches through these databases for information about U.S. citizens and lawful permanent residents. The FBI does not obtain any probable cause warrants for these searches, skirting Fourth Amendment protections and earning these searches the title of "backdoor searches."&#13;</p>
<p>Two California representatives are key to this debate: Rep. Devin Nunes (R-Calif.), the Chair of the House Permanent Select Committee on Intelligence, and Rep. Adam Schiff (D-Calif.), the Ranking Member. The House Intelligence Committee has a responsibility to oversee the intelligence agencies that use Section 702 to justify surveillance.&#13;</p>
<p>Rep. Bob Goodlatte (R-Va.) and Rep. John Conyers (D-Mich.) introduced the USA Liberty Act last month. They are respectively the Chair and Ranking Member of the House Judiciary Committee, which oversees surveillance that may impact Americans. The bill includes a few surveillance reforms, including a requirement that FBI agents must obtain a warrant to access Section 702-collected content in criminal investigations.&#13;</p>
<p>Other California elected officials have taken a stand for limiting the NSA’s spying powers. Sens. Dianne Feinstein (D) and Kamala Harris (D) made waves by introducing an amendment in the Senate Select Committee on Intelligence last week to shut the backdoor search loophole. &#13;</p>
<div>Sen. Feinstein’s position was clear: "The Fourth Amendment of our Constitution provides basic privacy rights for all Americans. I believe the Supreme Court has been clear that in order to access the content of an American’s communications, the government is required to get a probable cause warrant. The same standard should apply to Section 702."</div>
<div></div>
<div>
<div>While we have criticized Sen. Feinstein's support for Section 702, we <a href="https://www.eff.org/files/2017/11/05/eff_to_sen._feinstein.pdf">appreciate</a> her opposition to warrantless backdoor searches now.</div>
<p><br class="Apple-interchange-newline" />Many members of Congress are rightly revisiting prior support for unchecked surveillance powers. Sens. Feinstein and Harris may be responding to the concerns of their California constituents, as Californians have a long history of supporting privacy and civil liberties&#13;</p>
</div>
<div>In 2015, Governor Jerry Brown signed into law the California Electronic Communications Privacy Act, which bars state and local government agencies from compelling companies to hand over digital communications, or otherwise acquiring such data, without first obtaining a warrant. More than a decade earlier, California passed a law that required websites and online services to publicly post their privacy policies online. And in 1972, California amended its constitution to enshrine privacy as a right:&#13;
<p>"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."&#13;</p>
<p>A<a href="#_msocom_6"></a>s the Los Angeles Daily News<a href="#_msocom_7"></a> editorial board <a href="http://www.dailynews.com/2017/11/01/close-the-backdoor-to-our-freedoms/">wrote this week</a>, “the mere invocation of ‘national security’ does not, and should not, suspend the constitutional rights of Americans.” The editorial board continued: “If the information of Americans must be collected, the NSA and other federal agencies should get a warrant to do so, as the Fourth Amendment demands.”&#13;</p>
<p>Many members of Congress who supported NSA surveillance programs in the past may be updating their positions because they are concerned about a vast and intrusive NSA intelligence apparatus helmed by President Trump. As Michelle Richardson of the Center for Democracy and Technology <a href="https://www.justsecurity.org/44793/lot-u-s-spying-section-702s-reauthorization/">has written</a>, we know significantly more about NSA surveillance programs today than we did when Section 702 was last taken up by Congress:&#13;</p>
<blockquote><p>Lawmakers should be very concerned about its scope, lack of privacy protections, and near-constant compliance problems. Legislators who supported the program before should feel free to change their minds.</p>
</blockquote>
<p>Reps. Nunes and Schiff have a rare and powerful opportunity to align the national discourse on digital surveillance tools with the interests of the Californians they represent. They can help end warrantless "backdoor" searches.&#13;</p>
</div>
</div></div></div>Sun, 05 Nov 2017 22:17:37 +000097344 at https://www.eff.orgCommentaryDecoding 702: What is Section 702?NSA SpyingPrivacyDavid RuizWho Speaks for The Billions of Victims of Mass Surveillance? Tech Companies Couldhttps://www.eff.org/ru/deeplinks/2017/10/tech-companies-could-fight-non-us-surveillance
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Two clocks are ticking for US tech companies in the power centers of the modern world. In Washington, lawmakers are working to <a href="https://www.eff.org/deeplinks/2016/06/end-702">reform FISA Section 702</a> before it expires on December 31st, 2017. Section 702 is the main legal basis for US mass surveillance, including the programs and techniques that scoop up the data transferred by non-US individuals to US servers. Upstream surveillance collects communications as they travel over the Internet backbone, and downstream surveillance (better known as PRISM) collects communications from companies like Google, Facebook, and Yahoo.</p><p>Both programs have used Section 702’s vague definitions to justify the wholesale seizure of Internet and telephony traffic: any foreign person located outside the United States could be subjected to surveillance if the government thinks that surveillance would acquire “foreign intelligence information”—which here means information about a foreign power or territory that “relates to [] the national defense or the security [or] the conduct of the foreign affairs of the United States.”</p><p>Without fixes to Section 702’s treatment of foreign users, the customers of American Internet services will continue to have personal information and communications sucked up, without limit, into American intelligence agency databases.</p><p>Meanwhile, in Luxembourg, at the heart of the EU, the European Court of Justice (CJEU) is <a href="https://www.eff.org/deeplinks/2017/10/europes-courts-decide-does-us-spying-violate-europes-privacy">due to take a renewed look</a> at how US law protects the privacy rights of European customers, and decide whether it's sufficiently protective for American companies to be permitted to transfer European personal data to servers in the United States.</p><p>The two ticking timers are inextricably linked. Last time the CJEU reviewed US privacy law, in <a href="http://curia.europa.eu/juris/documents.jsf?num=C-362/14">Schrems v. Data Protection Commissioner</a>, they saw no indication that the US mass surveillance program was necessary or proportionate, and noted that foreign victims of surveillance had no right of redress for its excesses. US law, they stated, was insufficient to protect Europeans, and declared the EU-US Data Protection Safe Harbor agreement void, instantly shutting down a major method for transferring personal data legally between the US and Europe.</p><p>Now another similar case is currently weaving through the courts for review by the CJEU. Without profound changes in US law, its judges will almost certainly make the same decision, stripping away yet more methods that US Internet companies might have to process European customers' data.</p><p>This time, though, it won't be possible to fix the problem by papering it over (as the <a href="https://www.eff.org/deeplinks/2016/03/privacy-shield-riddled-surveillance-holes">weak Privacy Shield agreement</a> did last time). The only long-term fix will be to give non-Americans the rights that European courts, and international human rights law expect.</p><p>Sadly, no company has yet stepped forward to defend the rights of their non-American customers. Last week, Silicon Valley companies, including Apple, Facebook, Google, Microsoft and Twitter, <a href="https://reformgs.tumblr.com/post/166337239927/reform-government-surveillance-statement-on-the">wrote a lukewarm letter of support</a> for the USA Liberty Act, characterizing this troublesome surveillance reauthorization package as an improvement to “privacy protections, accountability, and transparency.” The companies made no mention of the rights of non-Americans who rely on US companies to process their data.</p><p>The USA Liberty Act reauthorizes NSA surveillance programs for 6 years and makes some adjustments to government access to American communications. But the bill fails to include any legal protections for innocent foreigners abroad. Instead, the bill offers a “sense of Congress” —a statement about Congressional intention with no legal weight or enforceability —that NSA surveillance “should respect the norms of international comity by avoiding, both in actuality and appearance, targeting of foreign individuals based on unfounded discrimination.”</p><p>Previous discussions of 702 reform included demanding better justifications for seizing data. The law could, at the very least, better define “foreign intelligence” so that not every person in the world could potentially be considered a legitimate target for surveillance.</p><p><span class="pull-quote">The companies could call for substantively better treatment of their foreign customers, but they have chosen to say nothing.</span> Based on these ideas, the companies could call for substantively better treatment of their foreign customers, but they have chosen to say nothing. Why? It may be that they feel that it is unlikely that such protections would pass the current Congress. But such reforms <em>definitely</em> won’t pass Congress unless they are proposed or supported by major Washington players like the tech giants. Much of the existing statutory language of US surveillance reform, in the USA Freedom Act and now in the USA Liberty Bill, was unimaginable until advocates spoke up for it.</p><p>The other reason may be that it’s safer to keep quiet. If the tech companies point out that Section 702’s protections are weak, then that will draw the attention to the European courts, and undermine the testimony of Facebook’s lawyers in the Irish courts that everything is just fine in American surveillance law.</p><p>If so, the companies are engaged in dangerous wishful thinking, because that ship has already sailed. In the early stages of the current CJEU court case, in the Irish High Court, Facebook and the US government <a href="http://www.europe-v-facebook.org/sh2/ES.pdf">both argued</a> that current US law was sufficiently protective of foreigners' privacy rights. They lost that argument. And without US legal reform, they're almost certain to lose at the CJEU, the next port of call for the case. The companies need to remember what <a href="http://curia.europa.eu/juris/document/document.jsf?text=&amp;docid=182494&amp;pageIndex=0&amp;doclang=EN&amp;mode=req&amp;dir=&amp;occ=first&amp;part=1&amp;cid=1040916">that court said</a> in the first Schrems decision:</p><blockquote><p>Legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union.</p><p>Likewise, legislation not providing for any possibility for an individual to pursue legal remedies in order to have access to personal data relating to him, or to obtain the rectification or erasure of such data, does not respect the essence of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union.</p></blockquote><p>In other words, it's not American business practices that need to change: ­ it's American law.</p><p>Section 702 reform, currently being debated in Congress, is the Internet companies' last chance to head off the chaos of a rift between the E.U. and the US. By pushing for improvements for non-US persons in the proposed bills renewing Section 702 (or fighting for Section 702 to be rejected outright), they could stave off the European courts sanctions ­ and reassure non-American customers that they really do care about their privacy.</p><p>There's still time, but the clocks are ticking. If America's biggest businesses step up and tell Congress that the privacy of non-Americans matter, that reform bills like the Liberty Act must contain improvements in transparency, redress, and minimization for everyone, not just Americans, they'll get an audience in Washington.</p><p>They’ll also be heard in the rest of the world. Since the Snowden revelations, non-American customers of US internet communication providers have repeatedly asked them: “How can we trust you? You say you have nothing to do with PRISM, and you zealously protect your users’ data. But how do we know when the US government comes knocking, you’ll have your foreign users’ backs?”</p><p>Standing up in D.C. and speaking for the rights of their customers would send a powerful message that American companies believe that non-American Internet users have privacy rights too, no matter what American lawmakers currently believe.</p><p>Staying quiet sends another signal entirely: that while they might prefer a world where the law protects their foreign customers, they’re unwilling to make a noise to make that world a reality. Their customers — and competitors — will draw their own conclusions.</p>
</div></div></div>Mon, 30 Oct 2017 21:01:05 +000097301 at https://www.eff.orgCommentaryNSA SpyingSurveillance and Human RightsPrivacyDanny O&#039;BrienProposal to Restrict Technical Assistance Demands Before Secret Surveillance Court Raises More Questions About Section 702https://www.eff.org/ru/deeplinks/2017/10/proposal-restrict-technical-assistance-demands-secret-surveillance-court-raises
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>As we detailed yesterday, a bill introduced this week by Sens. Ron Wyden and Rand Paul would represent the <a href="https://www.eff.org/deeplinks/2017/10/usa-rights-act-protects-us-nsa-spying">most comprehensive reform so far of Section 702</a>, the law that authorizes the government to engage in mass warrantless surveillance of the Internet. EFF supports the bill, known as the USA Rights Act, because it closes the <a href="https://www.eff.org/pages/backdoor-search">backdoor search loophole</a> and addresses other glaring problems with Section 702.&#13;</p>
<p>But the bill also makes changes to lesser-known provisions of Section 702. One of these amendments raises it own questions about how the government has been enlisting private companies to provide access to our communications, including whether it has required circumvention of encryption as in the recent fight between Apple and the FBI. It may well also call into question the response EFF received from the government in FOIA litigation seeking records to determine whether such a case exists.<span></span>&#13;</p>
<p>Section 14 of the USA Rights Act restricts when the government can demand that a email or other electronic communications service provider render “technical assistance” to facilitate the government’s mass spying. The bill would require the government to show that providing such assistance would not be burdensome and also obtain an order from the Foreign Intelligence Surveillance Court (FISC) first.&#13;</p>
<p><span class="pull-quote">In a letter to EFF, the government wrote that it determined “that there were no cases brought before the Foreign Intelligence Surveillance Court (FISC) that would have resulted in responsive orders or opinions of the FISC.”</span>&#13;</p>
<p>Under current law, government officials can require that providers give “all information, facilities, or <a href="https://www.law.cornell.edu/definitions/uscode.php?width=840&amp;height=800&amp;iframe=true&amp;def_id=50-USC-1375004472-1534456792&amp;term_occur=18&amp;term_src=title:50:chapter:36:subchapter:VI:section:1881a" title="assistance">assistance</a> necessary” to the acquisition of targeted communications by simply telling them to do so. Under this regime, providers must comply or challenge the request before the FISC if the technical assistance the government wants is unreasonably burdensome or worse. &#13;</p>
<p>EFF is not aware of an instance in which the FISC has compelled a company to provide technical help, such as decrypting communications, to assist the government in its spying efforts under Section 702.&#13;</p>
<p>But the FISC operates in almost total secrecy, so those of us without security clearances ordinarily wouldn’t hear about it. We’ve long been concerned about this possibility. In 2016 we filed a Freedom of Information Act (FOIA) <a href="https://www.eff.org/foia/significant-fisc-opinions">lawsuit</a> seeking any FISC orders or other documents that would show that the government was demanding that companies provide take steps similar to the FBI’s efforts to force apple to decrypt one of its iPhones in the San Bernardino case.&#13;</p>
<p>In our FOIA case, the government has consistently said that the FISC has not issued any <i>orders or opinions</i> requiring that companies provide technical assistance. After we filed suit, the government agreed to conduct a second, more thorough search for those types of FISC orders. In a <a href="https://www.eff.org/document/doj-letter-eff-regarding-search-fisc-technical-assistance-orders">letter</a> to EFF, the government wrote that it determined “that there were no cases brought before the Foreign Intelligence Surveillance Court (FISC) that would have resulted in responsive orders or opinions of the FISC.”&#13;</p>
<p>But the fact that the USA Rights Act specifically restricts the government’s ability to demand technical assistance from service providers is concerning precisely because it suggests the government may have done so in the past or will do so in the future. Others have similarly <a href="https://www.emptywheel.net/2017/10/24/ron-wyden-is-worried-the-government-will-use-fisa-process-to-force-secret-technical-changes/">speculated</a> that Senator Wyden, who often raises public concerns about the government’s spying activities via necessarily cryptic letters or public statements, is using the bill to raise alarms about this issue.&#13;</p>
<p>To be clear, we do not have reason to believe that the government misled EFF when it represented that the FISC had never issued any technical assistance orders. Because the statute presently allows the government to demand technical assistance <i>without</i> getting a court order and puts the burden on providers to challenge those demands, it’s possible that the secret surveillance court has never had the opportunity to deal with the issue. Thus, there may be no orders that would have come up in a search for records in response to our FOIA.&#13;</p>
<p>That said, the USA Rights Act’s provision does highlight the possibility that the government uses its surveillance authority to require companies to modify their services or otherwise assist with its mass surveillance efforts. It also underscores how little we know about how the government uses Section 702 as a practical matter, which is a problem in and of itself.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/significant-fisc-opinions">Significant FISC Opinions</a></div></div></div>Wed, 25 Oct 2017 23:22:30 +000097254 at https://www.eff.orgTransparencyDecoding 702: What is Section 702?NSA SpyingAaron MackeyAndrew CrockerNo Warrantless Searching of Our Emails, Chats, and Browser Datahttps://www.eff.org/ru/deeplinks/2017/10/no-warrantless-searching-our-emails-chats-and-browser-data
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Congress is poised to vote on extending or reforming NSA surveillance powers in the coming weeks, and one issue has risen to the forefront of the fight: <a href="https://www.eff.org/pages/backdoor-search">backdoor searches</a>. These are searches in which FBI, CIA, and NSA agents search through the communications of Americans collected by the NSA without a warrant. This practice violates the Fourth Amendment. But the government argues that since the NSA originally collected the communications under statutory surveillance powers, the government doesn’t need a warrant to search through them later. This is a “backdoor” around the Constitutional rights that protect our digital communications.&#13;</p>
<p>But we have a chance to shut and lock that backdoor, so that government agents don't access the communications of Americans without proving probable cause to a judge.&#13;</p>
<p>The USA Liberty Act <a href="https://www.eff.org/deeplinks/2017/10/usa-liberty-act-wont-fix-whats-most-broken-nsa-internet-surveillance">introduced</a> this month is considered the most viable NSA reform package, and privacy champions on the Hill were able to insert some safeguards against warrantless search into the initial draft. FBI agents who know about a crime and are searching someone’s communications to obtain evidence and build up a case will have to go to a judge and get a warrant before accessing those communications. That’s a good step.&#13;</p>
<p>But it isn’t the full reform we need. That’s because the USA Liberty Act won’t extend the warrant protections to NSA or CIA agents, who we know routinely search this vast database of communications. If the FBI is merely poking around the database trying to look for criminal activity but isn’t investigating a specific crime, they won’t be required to get a warrant. And “foreign intelligence gathering” —a notoriously broad and vague term in the government’s parlance— will also be exempt from this warrant requirement.&#13;</p>
<p>Accessing American communications should require a warrant from a judge. The reform in the USA Liberty Act is an effort to move in that direction, but it leaves a policy that’s open to abuse. Under the current legislative draft, NSA agents can still read emails of Americans and pass “tips” to domestic law enforcement, all without judicial oversight.&#13;</p>
<p>EFF is asking members, friends, and concerned citizens to raise their voices over this issue. <a href="https://www.endthebackdoor.com/">Please call your members of Congress and tell them that we won’t tolerate exceptions to our Fourth Amendment rights</a>. &#13;</p>
<p>We have shown many times over the last few years that calls can make a huge difference. And this is the moment: the Judiciary Committee in the House is considering revisions to the bill right now. This is the time to put pressure on the House if we want to see the backdoor search loophole shut. &#13;</p>
<p>Visit <a href="https://www.endthebackdoor.com/">EndtheBackdoor.com</a> to speak out.&#13;</p>
<p class="take-action"><a href="https://endthebackdoor.com">Speak out</a></p>
<p>Want to learn more about the reforms proposed in the USA Liberty Act? <a href="https://www.eff.org/deeplinks/2017/10/usa-liberty-act-wont-fix-whats-most-broken-nsa-internet-surveillance">Read our analysis</a>. </p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/wikimedia-v-nsa">Wikimedia v. NSA</a></div><div class="field__item odd"><a href="/ru/cases/jewel">Jewel v. NSA</a></div><div class="field__item even"><a href="/ru/cases/first-unitarian-church-los-angeles-v-nsa">First Unitarian Church of Los Angeles v. NSA</a></div></div></div>Wed, 25 Oct 2017 00:53:43 +000097245 at https://www.eff.orgCall To ActionLegislative AnalysisNSA SpyingPrivacyDecoding 702: What is Section 702?rainey ReitmanThe USA Rights Act Protects Us From NSA Spyinghttps://www.eff.org/ru/deeplinks/2017/10/usa-rights-act-protects-us-nsa-spying
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>A new bill introduced today in the Senate provides necessary protections from NSA surveillance programs. The USA Rights Act, introduced by Senators Ron Wyden (D-Ore.), Rand Paul (R-Ky.), and eleven other Senators would provide meaningful reforms to one of the government’s most powerful surveillance tools. It fixes the “backdoor search loophole,” which now allows warrantless searches of the NSA-collected contents of Americans’ communications. It extends broad oversight powers to an independent agency. It guarantees the end of a controversial type of data search (called “about” searches) that the NSA suspended earlier this year. It improves judicial oversight of the government’s surveillance regime. It provides better transparency and requires stricter reporting. &#13;</p>
<p>Representatives Zoe Lofgren (D-Cal.) and Ted Poe (R-Tex.) also introduced companion legislation today in the House of Representatives. &#13;</p>
<p>EFF supports the USA Rights Act, and we urge Congress to enact it. Plainly, the introduced legislation is a lighthouse—a beacon that extends new light on the government’s opaque surveillance regime, hopefully guiding future legislation on similar issues.&#13;</p>
<p>At the heart of the USA Rights Act is the reform of Section 702 of the FISA Amendments Act of 2008, a law set to expire at the end of this year.&#13;</p>
<p>Section 702 allows the NSA to collect the communications of foreign individuals not living in the United States. These collections are done ostensibly in the name of foreign intelligence and national security. But Section 702 also sweeps up a vast number of communications of countless Americans. Those communications are then stored in a database that can be searched by the NSA and other intelligence agencies, including the FBI, without obtaining a warrant. Those are called “backdoor” searches, because they evade ordinary Fourth Amendment protection of the privacy of Americans’ communications. EFF is fighting in court to prove that this entire system of NSA surveillance is unconstitutional.&#13;</p>
<p>The USA Rights Act closes the backdoor search loophole. Government agents searching Section 702-collected data for information on a U.S. person, or a person inside the U.S., would need to acquire a warrant first. The bill’s warrant exception for “emergency situations” would require subsequent judicial oversight. EFF welcomes this immediate and plain-language change to how government agents access Americans’ communications.&#13;</p>
<p>The USA Rights Act also guarantees the end of “about” searches. Under this practice, the NSA collected—and the NSA and other government agencies searched—communications that were “about” a targeted individual, but not “to” or “from” them. This practice swept up the communications of many people who were not targets of NSA surveillance. Though the NSA earlier this year announced the suspension of “about” collection, the NSA might reverse course. The USA Rights Act ensures the NSA cannot reinstitute this practice. This is a reassuring move.&#13;</p>
<p>The bill also bolsters the mechanisms for Section 702 oversight. Currently, Section 702 is subject to insufficient government oversight. For example, intelligence officials have gotten away with stonewalling questions from Congress, and evading queries from the court that approves warrants under Section 702—the Foreign Intelligence Surveillance Court (FISC).&#13;</p>
<p>To address this problem, the bill would improve judicial oversight of Section 702. First, it would make it easier for individuals to bring constitutional lawsuits challenging the program by addressing a legal doctrine called “standing.” Second, it would ensure that criminal defendants are notified when the government uses Section 702-derived data as evidence against them. The bill also would expand the opportunities for the FISC’s official <i>amicus curiae</i> to participate in FISC proceedings. In 2015, Congress established this amicus as a way to ensure that the FISC did not make Section 702 decisions based solely on the views of the government.&#13;</p>
<p>Also, the bill extends new powers and authority to the Privacy and Civil Liberties Oversight Board, an independent agency established by Congress. Under the bill, the Board will be able to receive and investigate all whistleblower complaints made through approved government channels. The Board will gain the independent power to subpoena individuals, removing the current requirement that the Attorney General approve such requests. The Board’s non-chair members will become salaried employees. And the Board receives an expanded mandate to review all foreign intelligence activities.&#13;</p>
<p>These are just some of the specific improvements written in the USA Rights Act. Overall, the bill provides better reporting, transparency, protections, and oversight. It also prohibits the collection of purely domestic communications, and creates new checks and balances in the appointment of judges to the FISC and the FISA Court of Review.&#13;</p>
<p>Finally, the authors of the USA Rights Act understand that surveillance oversight must be an ongoing discussion. The USA Rights Act thus calls for a four-year sunset.&#13;</p>
<p>The USA Rights Act provides meaningful reform to Section 702 and would advance the civil liberties guaranteed by the Constitution.&#13;</p>
<p>We welcome and support this bill.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/jewel">Jewel v. NSA</a></div></div></div>Wed, 25 Oct 2017 00:36:36 +000097243 at https://www.eff.orgLegislative AnalysisPrivacyNSA SpyingDecoding 702: What is Section 702?David RuizFBI Director Wray is Wrong About Section 702 Surveillancehttps://www.eff.org/ru/deeplinks/2017/10/fbi-director-wray-wrong-about-section-702-surveillance
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Newly-minted FBI Director Christopher Wray threw out several justifications for the continued, warrantless government search of American communications. He’s wrong on all accounts.<i> </i>&#13;</p>
<p>In a presentation hosted by The Heritage Foundation, Wray warned of a metaphorical policy “wall” that, more than 15 years ago, stood between the U.S. government’s multiple intelligence-gathering agencies. That wall prevented quick data sharing, he said. It prevented quick “dot-connecting” to match threats to actors, he said. And, he said, it partly prevented the U.S. from stopping the September 11 attacks.&#13;</p>
<p>“When people, now, sit back and say, ‘Three thousand people died on 9/11, how could the U.S. government let this happen?’” Wray said. “And one of the answers is, well, they had this wall.” &#13;</p>
<p>Wray is concerned with the potential expiration of the one of the government’s most powerful surveillance tools. It’s called Section 702 of the FISA Amendments Act and it allows the NSA to collect emails, browser history and chat logs of Americans. Section 702 also allows other agencies, like the FBI, to search through that data without a warrant. Those searches are called “backdoor searches.”&#13;</p>
<p>Congress is considering bills with limitations to backdoor searches—including <a href="https://www.eff.org/deeplinks/2017/10/usa-liberty-act-wont-fix-whats-most-broken-nsa-internet-surveillance">one bill that we have analyzed</a>—and Wray is against that. Section 702, Wray claimed, doesn’t need limitations, or as he called it, a “self-inflicted wound.” According to Wray, Section 702 is Constitutional, has broad government oversight, and keeps Americans safe.&#13;</p>
<p>Let’s see where he’s wrong.&#13;</p>
<h3><b>Constitutionality</b></h3>
<p><b></b>&#13;</p>
<p>“Section 702 is Constitutional, lawful, [and] consistent with the Fourth Amendment,” Director Wray said. “Every court to consider the 702 program, including the Ninth Circuit, has found that.”&#13;</p>
<p>The chasm between Wray’s words and his interpretation is enormous. Have courts “considered” Section 702, as Wray described? Yes. Have any decided Section 702’s constitutionality? Absolutely not.&#13;</p>
<p>U.S. courts have delivered opinions in lawsuits involving data collected under Section 702, but no single court has delivered an opinion specifically on the constitutionality of Section 702. It’s an issue that EFF is currently fighting, in our years-long lawsuit <a href="https://www.eff.org/cases/jewel"><i>Jewel v. NSA</i></a>.&#13;</p>
<p>When Wray mentions the Ninth Circuit, he is likely referencing a <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/05/14-30217.pdf">2016 decision</a> by the U.S. Court of Appeals for the Ninth Circuit. In the opinion for <i>USA v. Mohamed Osman Mohamud,</i> the appeals court ruled that, based on the very specific evidence of the lawsuit, data collected under Section 702 did not violate a U.S. person’s Fourth Amendment rights. But the judge explicitly wrote that this lawsuit did not involve some of the more “complex statutory and constitutional issues” potentially raised by Section 702.&#13;</p>
<p>Notably, the judge wrote that the Mohamud case did not involve “the retention and querying of incidentally collected communications.” That’s exactly what we mean when we talk about “backdoor searches.”&#13;</p>
<p>Wray is mischaracterizing the court’s opinion. He is wrong.&#13;</p>
<h3><b>Government Oversight</b></h3>
<p><b></b>&#13;</p>
<p>“[Section 702] is subject to rigorous oversight,” Wray said. “Oversight, by not just one, not just two, but all three branches of government.”&#13;</p>
<p>Wray’s comments again are disingenuous.&#13;</p>
<p>U.S. Senators have tried to get clear answers from intelligence agency directors about Section 702 collection. Many times, they have been stonewalled.&#13;</p>
<p>When Senator Ron Wyden (D-Oregon) asked former Director of National Intelligence James Clapper: “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”&#13;</p>
<p>“No, sir,” Clapper said. “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”&#13;</p>
<p>Months later, defense contractor Edward Snowden confirmed that the NSA does indeed collect data on Americans. Clapper clarified his statement: he gave the “least untruthful” answer he could. If intelligence agencies, and their directors, cannot provide honest answers about Section 702, then meaningful Congressional oversight is a myth.&#13;</p>
<p>As for judicial oversight, the court that approves warrants under Section 702—known as the Foreign Intelligence Surveillance Court—has rebuked the NSA in multiple opinions. A chart of Section 702 compliance violations, with accompanying court opinions, can be found <a href="https://www.newamerica.org/oti/blog/history-fisa-section-702-compliance-violations/">here</a>.&#13;</p>
<p>While Section 702 is subject to government oversight, it doesn’t look like the NSA pays much attention.&#13;</p>
<p>Finally, there can be no meaningful public oversight so long as we are kept in the dark. FISC opinions are not, by default, made public. Revelations to the press are denied. Even negotiations to upcoming bills are made behind closed doors.&#13;</p>
<h3><b>American Safety</b></h3>
<p><b></b>&#13;</p>
<p>The safety and well-being of Americans is paramount, and tools that help provide that safety are clearly important. But in his remarks, Wray relied on familiar scare tactics to create political leverage. Unwilling to explain Section 702 success stories, Wray instead relied on the hypothetical. He asked What If?&#13;</p>
<p>He conjured hypothetical mass shootings and lone gunmen. He employed the idea of a stranger taking pictures of a bridge at night; another buying suspicious supplies at a hardware store. He imagined a high schooler reporting worrying behavior of an ex-boyfriend. He invoked the specters of would-be victims.&#13;</p>
<p>In all these situations, Wray’s position was clear: Section 702 prevents this chaos. Do not challenge it, he begged.&#13;</p>
<p>“Any restriction on our ability to access the information that’s already Constitutionally collected in our databases, I just think is a really tragic and needless restriction,” Wray said. “And I beg the country not to go there again. I think we will regret it and I just am hoping that it doesn’t take another attack for people to realize that.”&#13;</p>
<p>The U.S. government does not publicly provide data to assert its claim that Section 702 keeps Americans safe, claiming that such disclosures would compromise intelligence gathering. This is understandable. Wray’s suggestion of “another attack” is not. It suggests fear will help steer Americans towards the right decision. &#13;</p>
<p>Fear drove McCarthyism. Fear drove Japanese American internment. Fear drove the Chinese Exclusion Act and it helped drive the Patriot Act. Do not let fear drive us from our rights.&#13;</p>
<p>Section 702 needs review, and many parts of it—including the backdoor search—do not measure up to Wray’s justifications. If the government can prove that warrantless search of American communications keeps Americans safe, why does Wray rely on hypotheticals?&#13;</p>
<p>If you care about ending the backdoor search loophole, <a href="https://www.endthebackdoor.com/">call your representatives today</a>.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/jewel">Jewel v. NSA</a></div></div></div>Tue, 24 Oct 2017 00:49:46 +000097233 at https://www.eff.orgCommentaryPrivacyDecoding 702: What is Section 702?NSA SpyingDavid RuizWhistleblower Protections in USA Liberty Act Not Enoughhttps://www.eff.org/ru/deeplinks/2017/10/whistleblower-protections-usa-liberty-act-not-enough
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The <a href="https://www.congress.gov/bill/115th-congress/house-bill/3989/text?q=%7B%22search%22%3A%5B%22hr+3989%22%5D%7D&amp;r=1">USA Liberty Act</a> fails to safeguard whistleblowers—both as federal employees and contractors—because of a total lack of protection from criminal prosecution. These shortcomings—which exist in other whistleblower protection laws—shine a light on much-needed Espionage Act reform, a law that has been used to stifle anti-war speech and punish political dissent. &#13;</p>
<p>Inside the recent House bill, <a href="https://www.eff.org/deeplinks/2017/10/usa-liberty-act-wont-fix-whats-most-broken-nsa-internet-surveillance">which seeks reauthorization for a massive government surveillance tool</a>, authors have extended whistleblower protections to contract employees, a group that, today, has no such protection. &#13;</p>
<p>The Liberty Act attempts to bring parity between intelligence community employees and contract employees by amending Section 1104 of the <a href="https://legcounsel.house.gov/Comps/National%20Security%20Act%20Of%201947.pdf">National Security Act of 1947</a>.&#13;</p>
<p>According to the act, employees for the CIA, NSA, Defense Intelligence Agency, Office of the Director of National Intelligence, National Geospatial-Intelligence Agency, and National Reconnaissance Office are protected from certain types of employer retaliation when reporting evidence of “a violation of any federal law, rule, or regulation,” or “mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” Employees working at agencies the President deems have a “primary function” of conducting foreign intelligence or counterintelligence are also covered by these protections.&#13;</p>
<p>Employees can’t be fired. Employees can’t be demoted. They can’t receive lower pay or benefits or be reassigned. And no “personnel actions” whatsoever can be ordered, actually, meaning no promotions or raises.&#13;</p>
<p>But employees are only protected from retaliation in the workplace. Entirely missing from Section 1104 of the National Security Act of 1947 are protections from criminal prosecution. That’s because the government treats whistleblowers differently from what they call leakers. According to the federal laws, government employees who make protected disclosures to approved government officials are whistleblowers, and they have protections; employees who deliver confidential information to newspapers are leakers. Leakers do not have protections.&#13;</p>
<p>Extending these whistleblower protections to contractors—while positive—is just an extension of the incomplete protections our federal employees currently receive. And, as written, the Liberty Act only protects contract employees from retaliation made by the government agency they contract with, <i>not</i> their direct employer. Contract employees work directly for private companies—like Lockheed Martin—that have contracts with the federal government for specific projects. The available data is unclear, but a 2010 <a href="http://projects.washingtonpost.com/top-secret-america/articles/a-hidden-world-growing-beyond-control/">investigation</a> by The Washington Post revealed that “1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.”&#13;</p>
<p>The problems continue. Currently, the Liberty Act, and Section 1104, do not specify how whistleblower protection is enforced.&#13;</p>
<p>Let’s say a contractor with Booz Allen Hamilton—the same contracting agency Edward Snowden briefly worked for when he confirmed widespread government surveillance to The Guardian in 2013—believes she has found evidence of an abuse of authority. According to the Liberty Act, she can present that evidence to a select number of individuals, which includes Director of National Intelligence Daniel Coats, Acting Inspector General of the Intelligence Community Wayne Stone, and any of the combined 38 members of the House of Representatives Permanent Select Committee on Intelligence and the U.S. Senate Select Committee on Intelligence. And, according to the Liberty Act, she will be protected from agency employer retaliation.&#13;</p>
<p>Maybe.&#13;</p>
<p>If the NSA still does fire the contractor, the Liberty Act does not explain how the contractor can fight back. There is no mention of appeals. There are no instructions for filing complaints. The bill—and the original National Security Act of 1947—has no bite.&#13;</p>
<p>The Liberty Act makes a good show of extending whistleblower protections to a separate—and steadily growing—class of employee. But the protections themselves are lacking. Contractors who offer confidential information to the press—like Reality Winner, who allegedly sent classified information to The Intercept—are still vulnerable under a World War I era law called The Espionage Act.&#13;</p>
<p>As <a href="https://www.eff.org/deeplinks/2017/06/one-hundred-years-espionage-act">we wrote</a>, the Espionage Act has a history mired in xenophobia, with an ever-changing set of justifications for its use. University of Texas School of Law professor Stephen Vladeck lambasted the law in a 2016 <a href="http://www.nydailynews.com/news/politics/hillary-e-mail-controversy-congress-fix-espionage-act-article-1.2700358">opinion piece for The New York Daily News</a>:&#13;</p>
<p>“Among many other shortcomings, the Espionage Act's vague provisions fail to differentiate between classical spying, leaking, and whistleblowing; are hopelessly overbroad in some of the conduct they prohibit (such as reading a newspaper story about leaked classified information); and fail to prohibit a fair amount of conduct that reasonable people might conclude should be illegal, such as discussing classified information in unclassified settings.”&#13;</p>
<p>Whistleblower protections, present in the National Security Act of 1947 and extended in the Liberty Act, are weakened by the U.S. government’s broad interpretation of the Espionage Act. Though the law was intended to stop spies and potential state sabotage, it has been used to buttress McCarthyism and to sentence a former Presidential candidate to 10 years in prison. Today, it is used to charge individuals who bring confidential information to newspapers and publishing platforms. &#13;</p>
<p>Whistleblower protections to the entire intelligence community are lacking. Instead of treating contractors the same, contractors should—together with employees—be treated better.&#13;</p>
<p>Improve whistleblower protections. <a href="https://act.eff.org/action/tell-lawmakers-to-reform-the-espionage-act">Reform the Espionage Act</a>.</p>
</div></div></div>Tue, 17 Oct 2017 19:40:03 +000097203 at https://www.eff.orgLegislative AnalysisDecoding 702: What is Section 702?NSA SpyingPrivacyDavid RuizUSA Liberty Act Won’t Fix What’s Most Broken with NSA Internet Surveillancehttps://www.eff.org/ru/deeplinks/2017/10/usa-liberty-act-wont-fix-whats-most-broken-nsa-internet-surveillance
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>A key legal linchpin for the National Security Agency’s vast Internet surveillance program is scheduled to disappear in under 90 days. <a href="https://www.eff.org/702-spying">Section 702 of FISA</a>—enacted in 2008 with little public awareness about the scope and power of the NSA’s surveillance of the Internet—supposedly directs the NSA’s powerful surveillance apparatus toward legitimate foreign intelligence targets overseas. Instead, the surveillance has been turned back on us. Despite repeated inquiries from Congress, the NSA has yet to publicly disclose how many Americans are impacted by this surveillance. &#13;</p>
<p>With the law’s sunset looming, Congress is taking up the issue. The <a href="https://www.congress.gov/bill/115th-congress/house-bill/3989/text?q=%7B%22search%22%3A%5B%22hr+3989%22%5D%7D&amp;r=1">USA Liberty Act</a>, introduced by Representatives Goodlatte (R-Va.), John Conyers (D-Mich.), Jim Sensenbrenner (R-Wis.), and others, may offer a chance to address some of the worst abuses of NSA Internet surveillance even as it reauthorizes some components of the surveillance for another six years. &#13;</p>
<p>But the first draft of the bill falls short.&#13;</p>
<p>The bill doesn’t effectively end the practice of “<a href="https://www.eff.org/pages/backdoor-search">backdoor searching</a>,” when government agents—including domestic law enforcement not working on issues of national security—search through the NSA-gathered communications of Americans without any form of warrant from a judge. It doesn’t institute adequate transparency and oversight measures, and it doesn’t deal with misuse of the state secrets privilege, which has been invoked to stave off lawsuits against mass surveillance. &#13;</p>
<p>Perhaps most importantly, the bill won’t curtail the NSA’s practices of collecting data on innocent people. &#13;</p>
<p>The bill does make significant changes to how and when agents can search through data collected under 702. It also institutes new reporting requirements, new defaults around data deletion, and new guidance for amicus engagement with the FISA Court. But even these provisions do not go far enough. &#13;</p>
<p>Congress has an opportunity and a responsibility to rein in NSA surveillance abuses. This is the first time, since 2013 reporting by the Washington Post and the Guardian changed the worldwide perception of digital spying, that Congress must vote on whether to reauthorize Section 702. Before this debate moves ahead, leaders in the House Judiciary Committee should fix the shortcomings in this bill.<b> </b>&#13;</p>
<h3><b>The Problems of 702</b></h3>
<p>Section 702 is supposed to give the NSA authority to engage in foreign intelligence collection. The NSA is only allowed to target non-Americans located outside U.S. borders. This legal authority has been the basis for <a href="https://www.eff.org/pages/upstream-prism">two controversial data collection programs</a>:&#13;</p>
<ul><li><b>Upstream surveillance:</b> data collection that siphons off copies of digital communications directly from the “Internet backbone,” the high-capacity fiber-optic cables run by telecommunications companies like AT&amp;T that transmit the majority of American digital communications.</li>
<li><b>PRISM (also known as “downstream surveillance”):</b> data collection gathered from the servers of major Internet service providers, such as Google, Facebook, and Apple.</li>
</ul><p>These programs flourished under President Bush and President Obama. <a href="https://www.washingtonpost.com/world/national-security/for-nsa-chief-terrorist-threat-drives-passion-to-collect-it-all/2013/07/14/3d26ef80-ea49-11e2-a301-ea5a8116d211_story.html?utm_term=.8955f7644662">As the Washington Post reported</a>, their NSA director took an expansive view on data collection:&#13;</p>
<blockquote><p>“Rather than look for a single needle in the haystack, his approach was, ‘Let’s collect the whole haystack,’ ” said one former senior U.S. intelligence official who tracked the plan’s implementation. “Collect it all, tag it, store it. . . . And whatever it is you want, you go searching for it.”</p>
</blockquote>
<p>Unfortunately, the Liberty Act won’t address most of these fundamental problems. Here’s an analysis of some of the key provisions in the bill, and we’ll have future articles exploring specific topics in more detail.&#13;</p>
<h3><b>Leaving the Backdoor Ajar</b></h3>
<p>Agents for the NSA, CIA, and FBI have long rifled through the communications collected under Section 702, which include American communications, as well as the communications of foreigners who have no connection to crime or national security threats. With no approval from a judge, they’re able to search this database of communications using a range of personal identifiers, then review the contents of communications uncovered in those searches. Government agents can then use these results to build a case against someone, or they may simply review it without prosecution.&#13;</p>
<p>Ordinarily, if the FBI wants to intercept or collect a U.S. person’s communications, they must first get permission from a judge. But as a result of Section 702, the FBI today reviews NSA-collected communications of U.S. persons without permission from a judge. Privacy advocates call this the “backdoor search loophole.” &#13;</p>
<p>This practice violates the Fourth Amendment right to privacy against unreasonable searches and seizures. And it can be difficult to prove because government agents may not disclose when they use evidence from the 702 database in prosecutions or for any other purposes. &#13;</p>
<p>The first draft of the Liberty Act doesn’t resolve the problem. It still allows government agents—including domestic law enforcement agents—to query the 702 database, including using identifiers associated with American citizens, such as the email address of an American. The main improvement is that when an agent conducts a query looking for evidence of a crime, she must obtain a probable cause warrant from a judge to access the results. &#13;</p>
<p>But the warrant requirement is limited due to a number of troubling carve-outs. First, this court oversight requirement won’t be triggered except for those searches conducted to find evidence of a crime. No other searches for any other purposes will require court oversight, including when spy agencies search for foreign intelligence, and when law enforcement agencies explore whether a crime occurred at all.&#13;</p>
<p>Metadata—how many communications are sent, to whom, at what times—won’t require court oversight at all. In fact, the Liberty Act doesn’t include the reforms to metadata queries the House had previously passed (which unfortunately did not pass the Senate). In the Massie-Lofgren Amendment, which passed the House twice, agents who conducted queries for metadata would be required to show the metadata was relevant to an investigation. That relevance standard is not in the Liberty Act.&#13;</p>
<p>Finally, some may interpret vague language in the bill as putting responsibility for assessing probable cause in the hands of the Attorney General, the main governmental prosecutor, rather than in the hands of the FISA Court. This language should be clarified to ensure the judge’s role in approving the applications is the same as in other FISA proceedings.&#13;</p>
<h3><b>Targeting Procedures</b></h3>
<p>The bill will require the NSA to exercise “due diligence in determining whether a person targeted is a non-United States person reasonably believed to be located outside of the United States,” and requires agents to consider the “totality of the circumstances” when making that evaluation.&#13;</p>
<p>At face value, this sounds promising. We do want the NSA to exercise due diligence when evaluating targets of surveillance. However, this provision is more of a fig leaf than a real fix, because even if targeting is improved, it won’t resolve the problem of Americans’ communications being collected. Right now, countless Americans are surveilled through so-called “<a href="https://www.eff.org/pages/Incidental-collection">incidental collection</a>.” This means that while the official target was a non-American overseas, American communications are swept up as well. Even though Americans were never the intended “target,” their emails, chats, and VOIP calls end up in a database accessible to the NSA, FBI, and others. Tightening up targeting won’t address this problem.&#13;</p>
<p>In addition, the bill doesn’t change the NSA’s practice of intercepting communications of countless innocent foreigners outside the United States. People outside our national borders are not criminals by default and should not be treated as if they were. If the United States wants to uphold our obligations to human rights under the <a href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx">International Covenant on Civil and Political Rights</a>, we must respect the basic privacy and dignity of citizens of other countries. That means not vacuuming up as many communications as possible for all foreigners overseas. This is an especially pressing issue now, as the European Union decides whether to limit how European data can be held by American companies. The recently enacted <a href="https://www.privacyshield.gov/welcome">Privacy Shield</a> <a href="https://www.eff.org/deeplinks/2016/03/privacy-shield-riddled-surveillance-holes">falls short</a> of the privacy commitments enshrined in European law. &#13;</p>
<h3><b>Retention of Communications</b></h3>
<p>After the NSA uses Section 702 to collect vast quantities of communications, the NSA stores these records for years to come. Every day the NSA holds these sensitive records is a day they can be misused by rogue government employees or deployed by agency leadership in new ways as part of inevitable “mission creep.” That’s why privacy advocates call for legislation that would require the NSA to purge these Section 702 communications by a fixed deadline, except for specific communications reasonably determined by analysts to have intelligence or law enforcement value.&#13;</p>
<p>Unfortunately, the Liberty Act does not solve this problem. Rather, it would only require that if the NSA determines that a communication lacks foreign intelligence value, then the NSA must purge it within 90 days. However, it’s unclear how often the NSA reviews its collected data to assess its foreign intelligence value. Since the bill requires no review, this provision may have little practical effect.&#13;</p>
<h3><b>Whistleblowers Left Unprotected</b></h3>
<p>Whistleblowers like Thomas Drake, Mark Klein, Bill Binney, and Edward Snowden were fundamental to the public’s understanding of NSA surveillance abuses. But they risked their careers and often their freedom in the process. The United States has a pressing need to improve protections for whistleblowers acting in the public good—including federal contractors who may be witness to wrongdoing.&#13;</p>
<p>The Liberty Act includes a section that would extend certain whistleblower protections to federal contractors. However, these protections only apply to “lawful disclosure” to a handful of government officers, such as the Director of National Intelligence. It does not provide any protection when a whistleblower speaks to the media or to advocacy organizations such as EFF.&#13;</p>
<p>Furthermore, the bill only protects whistleblowers against “personnel action,” so whistleblowers could still face criminal prosecution. The Espionage Act—a draconian law from 1917 with penalties including life in prison or the death penalty—has become the tool <i>de jour</i> to intimidate and punish public-interest whistleblowers. The Liberty Act will provide whistleblowers no protection against prosecution under the Espionage Act. &#13;</p>
<p>To make matters worse, the bill also creates new penalties for the unauthorized removal or retention of classified documents, including when done negligently. This will likely be another tool used to go after whistleblowers. This section of the bill must be significantly narrowed or cut. &#13;</p>
<h3><b>Ending “About” Collection</b> </h3>
<p>The National Security Agency announced in April the end of a controversial form of spying known colloquially as “about surveillance.” After collecting data directly from the backbone of the Internet and doing a rough filter, government agents use key selector terms about targeted persons to search through this massive trove of data. In the past, these searches would not merely search the address lines (the <i>to</i> and <i>from </i>section of the communications) but would directly search the full contents of the communications, so that any mention of a selector in the body of the email would be returned in the results. Thus, communications of people who were not surveillance targets, and were not communicating with surveillance targets, were included in the results. &#13;</p>
<p>The NSA was unable to find a way to conduct this type of “about” searching while adhering to restrictions imposed by the FISA Court, and thus the agency discontinued the practice in April. However, this is currently a voluntary policy, and the agency could begin again. In fact, NSA Director Mike Rogers <a href="https://www.eff.org/deeplinks/2017/06/liveblogging-todays-senate-intelligence-hearing-section-702">testified before Congress in June</a> that he might recommend that Congress reinstitute the program in the future.&#13;</p>
<p>The Liberty Act codifies the end of “about surveillance.” It provides that the NSA must limit its targeting “to communications to or from the targeted person.” While the NSA’s upstream program will <a href="https://www.eff.org/files/2014/07/24/backbone-3c-color.jpg">still collect</a> the communications passing through the Internet backbone, including the communications of vast numbers of innocent U.S. and foreign citizens, the end of “about” surveillance will reduce the number of communications stored in the 702 database. &#13;</p>
<h3><b>Other Positive Changes in the Bill</b><b> </b></h3>
<p>Critically, unlike some other pending reauthorization proposals, the Liberty Act will maintain Section 702’s “sunset,” ensuring that Congress must review, debate, and vote on this issue again in six years. Permanent reauthorization, which we strongly oppose, would prevent this Congressional check on executive overreach.&#13;</p>
<p>The Liberty Act makes some other modest improvements to the NSA’s surveillance practices. It gives the Privacy and Civil Liberties Oversight Board the ability to function without an appointed chair, which has been a persistent problem with this accountability body. It also puts in place new reporting requirements. &#13;</p>
<p>The bill would require the FISA Court to appoint an <i>amicus curiae</i> to assist it in reviewing the annual “certification” from the Attorney General and the Director of National Intelligence regarding the NSA’s Section 702 targeting and minimization procedures. This would be a helpful check on this currently one-sided process. However, the FISA Court could dispense with this check whenever it found the <i>amicus</i> appointment “not appropriate” – a nebulous test that could neuter this new safeguard.&#13;</p>
<h3><b>A Few More Missing Pieces</b> </h3>
<p>Many vital fixes to the worst surveillance abuses of the NSA are missing from this bill. &#13;</p>
<p>Congress should clear a pathway for individuals to contest privacy abuses by the NSA. This includes ensuring that Americans whose data may have been “incidentally” collected by the NSA under Section 702 have legal standing to go to court to challenge this violation of their constitutional rights. It also requires an overhaul of the controversial state secrets privilege, a common law doctrine that government agencies have invoked to dismiss, or refuse to provide evidence in, cases challenging mass surveillance.&#13;</p>
<p>Congress should crack down on “incidental collection,” and ensure the communications of innocent Americans are not collected in the first place. &#13;</p>
<p>Finally, we need to empower the FISA court to review and approve the targets of NSA surveillance. Currently, the NSA receives only general guidelines from the FISA Court, with no individual review of specific targets and selector terms. This means the NSA has little obligation to defend its choice of targets, resulting in little recourse when agents are over-inclusive of inappropriate targets.<b> </b>&#13;</p>
<h3><b>Next steps for the Judiciary Committee</b> </h3>
<p>Congress still has time to get this right. This bill hasn’t gone to markup yet, and the Judiciary Committee is likely to amend the bill before passing it to the floor. We urge the Judiciary Committee members to make changes to the bill to address these shortcomings.&#13;</p>
<p>As public awareness of NSA surveillance practices has grown, so too has public outrage. That outrage is the fuel for meaningful change. We passed one bill to begin reining in surveillance abuses in 2015, and from that small victory springs the political will for the next, more powerful reform. <a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">Join EFF in calling on Congress to rein in these surveillance abuses</a>, and defend privacy for Internet users of today and in the years to come. &#13;</p>
<p class="take-action"><a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">Speak out.</a></p>
<p class="take-explainer"><a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">Tell Congress It's time to let the sun set on mass Internet spying</a></p>
<p>With assistance from <a href="https://www.eff.org/about/staff/adam-schwartz">Adam Schwartz</a>.</p>
</div></div></div>Mon, 16 Oct 2017 22:35:33 +000097198 at https://www.eff.orgLegislative AnalysisDecoding 702: What is Section 702?NSA Spyingrainey ReitmanQ&A with Professor Xiaoxing Xi, Victim of Unjust Surveillancehttps://www.eff.org/ru/deeplinks/2017/10/qa-professor-xiaoxing-xi-victim-unjust-surveillance
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Professor Xiaoxing Xi, a physics professor with Temple University, was the subject of government surveillance under a FISA order. During September's <a href="http://www.fourthadvisory.org/upcoming-events/2017/9/28/disproportionate-impacts-surveillance" target="_blank">Color of Surveillance Hill briefing</a>, Professor Xi told his story of the devastating impact of government surveillance on his life.&#13;</p>
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<p>Professor Xi faced a prosecution that was later dropped because <a href="https://www.nytimes.com/2017/05/10/us/politics/fbi-xi-xiaoxing.html?_r=0" target="_blank">there was no evidence</a> that he had engaged in any wrongdoing. Ever since this invasive surveillance against him, he has become an outspoken <a href="https://www.courthousenews.com/wp-content/uploads/2017/05/physics-professor.pdf" target="_blank">advocate</a> against race-based surveillance and prosecution.&#13;</p>
<p>We asked Professor Xi to elaborate on the surveillance against him and the effect it had on him, his family, and his scientific work. &#13;</p>
<p><strong>Q: People assume their private communications are not visible to others, but it's become more and more clear that the government is surveilling countless Americans. How did you feel when you learned that the government had been reading your private emails, listening to your private phone calls, and conducting electronic surveillance? </strong>&#13;</p>
<p>It was frightening. I knew from the beginning that their charges against me were completely wrong, but we were fearful till the end that they might twist something I wrote in my emails or something I said over the phone to send me to jail. I also felt like I was being violated. When you lose your privacy, it's like being forced to walk around naked.&#13;</p>
<p><strong>Q: Does knowing you had been surveilled cause you concern now, years later? Do you still worry you're under surveillance?</strong>&#13;</p>
<p>Yes, my whole family are still seriously concerned about our emails being read and phone calls being listened to. People tell us that it is very unlikely we are still being surveilled, and they are probably right. Once violated, it is very difficult to shake off the fear. We watch every word we write and say, so that we don't give them excuses to "pick bones out of an egg," and life is very stressful like this.&#13;</p>
<p><strong>Q: Your children were still young when this happened, especially your daughter. How did your family feel about all this? How were they affected?</strong>&#13;</p>
<p>They were shaken by guns being pointed at them and seeing me snatched away in handcuffs. Everyone was traumatized by this experience, like the sky was falling upon us. My wife was very courageous, trying to shield the children from the harm, even though she herself was under tremendous stress. My elder daughter was a chemistry major, and now she works in a civil rights organization trying to raise the awareness of people about the injustices immigrants face. My younger daughter tries to go about her life like nothing has happened, but we worry about the long term effect on her.&#13;</p>
<p><strong>Q: How has your scientific work been affected by this horrible and unjust surveillance and prosecution?</strong>&#13;</p>
<p><strong></strong>It damaged my scientific research significantly. My reputation is now tainted and the opportunities for me to advance in the scientific community are more limited. My current research group is just a tiny fraction of what I used to have. In addition, I worry about routine academic activities being misconstrued by the government and I am scared to put my name on forms required for obtaining funding and managing research. &#13;</p>
<p><strong>Add your voice. </strong>Join EFF in speaking out against mass surveillance. </p>
<p class="take-action"><a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">Speak Out</a></p>
</div></div></div>Mon, 16 Oct 2017 19:59:14 +000097183 at https://www.eff.orgCommentaryDecoding 702: What is Section 702?NSA SpyingPrivacyJason Kelley58 Human Rights and Civil Liberties Organizations Demand an End to the Backdoor Search Loopholehttps://www.eff.org/ru/deeplinks/2017/10/coalition-58-human-rights-and-civil-liberties-organizations-demands-end-backdoor
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>EFF and 57 organizations, including American Civil Liberties Union, R Street, and NAACP, spoke out against warrantless searches of American citizens in a joint letter this week demanding reforms of the so-called “<a href="https://www.eff.org/pages/backdoor-search">backdoor search</a>” loophole that exists for data collected under Section 702.&#13;</p>
<p>The backdoor search loophole allows federal government agencies, including the FBI and CIA, to, without a warrant, search through data collected on American citizens.&#13;</p>
<p class="pull-quote"><span>Applying a warrant requirement only to searches of Section 702 data involving ‘criminal suspects,’ is not an adequate solution to this problem. </span></p>
<p>The data is first collected by the intelligence community under a section of law called <a href="https://www.eff.org/702-spying">Section 702 of the FISA Amendments Act of 2008</a>, which provides rules for sweeping up communications of foreign individuals outside the United States. However, the U.S. government also uses 702 to collect the communications of countless American citizens and store them in a database accessible by several agencies.&#13;</p>
<p>EFF and many others believe this type of mass collection alone is unconstitutional. The backdoor search loophole infringes American rights further—allowing agencies to warrantlessly search through 702-collected data by using search terms that describe U.S. persons. These terms could include names, email addresses, and more. &#13;</p>
<p>This practice needs to end. And a proposal before Congress to require warrants on backdoor searches used only in criminal investigations—as recently <a href="https://www.nytimes.com/2017/09/12/us/politics/fisa-warrantless-surveillance-law-reauthorization-debate.html">reported by the New York Times</a>—does not go far enough.&#13;</p>
<p>As EFF, and several other organizations, said in an Oct. 3 letter:&#13;</p>
<p>“Applying a warrant requirement only to searches of Section 702 data involving ‘criminal suspects,’ is not an adequate solution to this problem. Most fundamentally, it ignores the fact that the Fourth Amendment’s warrant requirement is not limited to criminal or non-national security related cases.”&#13;</p>
<p>Further, carving out a warrant requirement solely for criminal investigations ignores the broader umbrella term under which the FBI conducts many searches—that of “foreign intelligence.” Because the FBI conducts investigations with both criminal and foreign intelligence elements, the agency could predictably bypass backdoor warrant requirements by ascribing their searches to foreign affairs matters, rather than criminal.&#13;</p>
<p>Warrantless searches of American communications may especially impact those communities that may be speaking frequently to family outside of the United States of which have historically faced unjust surveillance. As we wrote: “Existing policies make it far too easy for the government to engage in searches that disproportionately target Muslim Americans and immigrants with overseas connections based merely on the assertion of a nebulous ‘foreign intelligence’ purpose.”&#13;</p>
<p>These searches are happening. In 2016, the CIA and NSA reported they conducted 30,000 searches for information about U.S. persons. That number does not include metadata searches by the CIA, a related problem that can also be fixed by Congress before Section 702 sunsets in December.&#13;</p>
<p>Backdoor searches of 702-collected data about U.S. citizens and residents should require a warrant based on probable cause. Congress can protect the rights of countless Americans by closing this loophole.&#13;</p>
<p><a href="https://www.eff.org/document/coalition-letter-backdoor-search">Read the full letter.</a> &#13;</p>
<p class="take-action" align="center"><a href="https://eff.org/702">TAKE ACTION</a></p>
<p class="take-explainer"><a href="https://eff.org/702">SPEAK OUT AGAINST WARRANTLESS NSA SURVEILLANCE TODAY</a></p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/jewel">Jewel v. NSA</a></div><div class="field__item odd"><a href="/ru/cases/first-unitarian-church-los-angeles-v-nsa">First Unitarian Church of Los Angeles v. NSA</a></div></div></div>Sat, 07 Oct 2017 00:19:32 +000097145 at https://www.eff.orgCall To ActionCommentaryPolicy AnalysisPrivacyDecoding 702: What is Section 702?NSA SpyingDavid RuizNational Security Agencies Are Evading Congressional Oversighthttps://www.eff.org/ru/deeplinks/2017/10/national-security-agencies-are-evading-congressional-oversight
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Last week, federal officials from several spy agencies engaged in a <a href="http://abcnews.go.com/Politics/wireStory/government-foreign-surveillance-authority-renewed-50086861">full court press</a> in Washington, <a href="http://www.miamiherald.com/news/politics-government/article175334796.html">spinning facts</a> before media outlets, flooding Capitol Hill with lobbyists, and bringing lawmakers to the National Security Agency's (NSA) Ft. Meade headquarters to feed them selective information about their <a href="https://www.eff.org/press/releases/eff-urges-supreme-court-take-unconstitutional-nsa-surveillance-reverse-dangerous">unconstitutional</a> mass surveillance activities. Predictably omitted from these conversations are the many Americans from across the political spectrum who have raised concerns, ranging from constitutional and <a href="https://www.pcworld.com/article/2156640/ciscos-chambers-tells-obama-that-surveillance-impacts-technology-sales.html">commercial</a> to security-related, that have rightfully dogged federal mass surveillance efforts since their <a href="https://web.archive.org/web/20060206162614/http://www.commondreams.org:80/headlines05/1216-01.htm">revelations</a>—not in official proceedings, but rather by whistleblowers—in <a href="http://www.pbs.org/wgbh/pages/frontline/homefront/interviews/klein.html">2005</a> and <a href="https://www.theguardian.com/us-news/the-nsa-files">2013</a>.&#13;</p>
<p>Rather than embrace bipartisan calls for long overdue and constitutionally necessary limits, executive officials have instead chosen to shoot the proverbial messengers, <a href="http://www.huffingtonpost.com/2013/12/29/michael-hayden-edward-snowden_n_4515705.html">vilifying</a> <a href="https://www.newyorker.com/magazine/2011/05/23/the-secret-sharer">whistleblowers</a> and building <a href="https://www.whistleblower.org/blog/023715-threats-whom-insider-threat-program%E2%80%99s-chilling-effect-whistleblowers">new programs</a> to <a href="https://twitter.com/EFF/status/911313818579476480">prevent</a> others from ever coming forward. Last week’s meetings included claims that particular <a href="http://abcnews.go.com/Politics/wireStory/government-foreign-surveillance-authority-renewed-50086861">examples</a> of mass surveillance proved useful, ignoring its repeated failures. While the appearance of security may be comforting to some, NSA veterans have identified <a href="https://jbwhitmore.com/2012/10/03/the-thin-thread-william-binney-and-the-nsa/">discarded programs</a> that, relative to their replacements, reportedly did a better job of protecting national security while also protecting the privacy of Americans by encrypting data collected within the U.S. and requiring a warrant for investigators to access it.&#13;</p>
<p>Meanwhile, too many members of Congress from each of the major parties remain excessively <a href="https://www.eff.org/deeplinks/2016/06/end-702">deferential</a> to the intelligence community, despite Congress mustering a bipartisan majority to enact <a href="https://www.eff.org/deeplinks/2015/05/usa-freedom-act-passes-what-we-celebrate-what-we-mourn-and-where-we-go-here">preliminary reforms</a> in 2013 and the House approving <a href="https://www.eff.org/deeplinks/2014/06/eff-statement-massie-lofgren-amendment-passing-house">even more sweeping changes</a> in their wake. Even though the <a href="https://www.eff.org/deeplinks/2016/06/end-702">scheduled expiration</a> of a key statute—Section 702 of the Foreign Intelligence Surveillance Act (FISA)—looms mere months away, congressional committees have yet to hold hearings to get beyond executive talking points and <a href="https://cyberlaw.stanford.edu/blog/2006/03/congressional-oversight-intelligence-sufficient">begin</a> actively <a href="https://www.youtube.com/playlist?list=PLBINnEpNu5u7LnwPrRe4aFjHUhsZI63pz">investigating</a> the underlying facts.&#13;</p>
<p>Originally enacted in the 1970s to restrain domestic surveillance, the <a href="http://www.cnss.org/pages/foreign-intelligence-surveillance-act-fisa.html">history</a> of the FISA statute is revealing in itself. Its genesis was a wide-ranging <a href="https://www.intelligence.senate.gov/sites/default/files/94755_II.pdf">congressional</a> <a href="https://www.intelligence.senate.gov/sites/default/files/94755_III.pdf">investigation</a> that dramatically <a href="https://www.1971film.com/">uncovered</a> a series of previously secret programs that, instead of promoting security, were carefully tailored to undermine constitutionally protected dissent. Alarmed at wide-ranging executive <a href="https://www.eff.org/deeplinks/2017/01/remember-dr-king-and-what-he-endured">abuses</a> behind a wall of secrecy, Congress enacted reforms that included the creation of a <a href="http://www.fisc.uscourts.gov/">secret court</a>, and insisted on <a href="https://oig.justice.gov/special/0509/chapter2.htm">regulations</a> by the Department of Justice to further curtail the FBI's 40-year assault on democracy in the form of <a href="https://vault.fbi.gov/cointel-pro">COINTELPRO</a>: its infamous Counterintelligence Programs.&#13;</p>
<p>Since then, the Justice Department regulations have been <a href="http://www.huffingtonpost.com/shahid-buttar/cointelpro-20_b_664943.html">watered down</a> periodically, while FISA was ultimately flipped on its head. Most recently, FISA was amended in 2009 to legalize a series of mass surveillance programs <a href="http://www.cnn.com/2005/POLITICS/12/17/bush.nsa/">begun</a> under the Bush administration in direct violation of the governing statue at the time, as well as constitutional limits. The <a href="http://thehill.com/blogs/ballot-box/239570-jeb-bush-praises-obama-over-nsa-spying">continuation</a> of these programs under the Obama administration granted them the appearance of <a href="https://theintercept.com/2015/04/21/jeb-bush-praises-obamas-expansion-nsa-surveillance/">bipartisan</a> legitimacy despite their clear and continuing <a href="https://www.eff.org/files/filenode/firstunitarianvnsa-final.pdf">unconstitutionality</a>.&#13;</p>
<p>In the past, concerns about mass surveillance have extended <a href="http://www.motherjones.com/politics/2013/11/justin-amash-nsa-surveillance/">across</a> <a href="https://www.theatlantic.com/politics/archive/2014/01/nsa-surveillance-divides-the-republican-party/283351/">the</a> <a href="http://thehill.com/policy/technology/203128-lofgren-calls-for-sweeping-nsa-email-privacy-reforms">political</a> <a href="https://www.lp.org/news-press-releases-libertarian-party-joins-coalition-to-launch-standagainstspyingorg-encouraging/">spectrum</a> and <a href="http://www.spiegel.de/international/germany/cover-story-how-nsa-spied-on-merkel-cell-phone-from-berlin-embassy-a-930205.html">around</a> the <a href="https://www.theguardian.com/world/2013/sep/09/nsa-spying-brazil-oil-petrobras">world</a>. Under the Trump administration, those concerns have grown increasingly pressing, given the president's seeming <a href="https://www.nytimes.com/2017/06/12/us/politics/trump-travel-ban-court-of-appeals.html">disregard</a> for constitutional limits on executive power, and potential willingness to <a href="https://www.wired.com/2016/10/imagine-donald-trump-controlled-nsa/">politicize</a> surveillance to serve his own political ends.&#13;</p>
<p>Given those concerns, and the <a href="https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-10">crucial</a> congressional role of checking and balancing the federal executive branch, Congress should aggressively exercise its oversight responsibilities. But there are <a href="https://s3.amazonaws.com/demandprogress/reports/Strengthening_Congressional_Oversight_of_the_IC_White_Paper_Sept_2016.pdf">structural</a> barriers to doing so. Many members of Congress on key congressional committees, for instance, lack qualified staff wielding adequate security clearance to rebut talking points peddled by self-serving executive officials.&#13;</p>
<p>Beyond structural impediments, many members of Congress have been willing to settle for mere assurances from executive officials, rather than insist upon reviewing evidence proving that mass surveillance effectively protects security, and that the government’s systems adequately protect the rights of innocent Americans. Representatives poised to do more include Democrats and Republicans whose constituents may enjoy <a href="https://www.eff.org/deeplinks/2017/04/dissent-made-meaningful">opportunities</a> to politically force their hands.&#13;</p>
<p>Only by investigating mass surveillance operations can Congress uncover the underlying facts. Such an investigation would be crucial in helping establish the need for long overdue constitutional limits.&#13;</p>
<p>In particular, because agencies including the NSA and FBI have relied on <a href="https://www.eff.org/deeplinks/2014/05/way-nsa-uses-section-702-deeply-troubling-heres-why">legal loophole</a>s and <a href="https://www.eff.org/deeplinks/2015/05/aclu-v-clapper-and-congress-how-second-circuits-decision-affects-legislative">secret interpretations</a> for which they have grown <a href="https://www.techdirt.com/articles/20130917/13395324556/court-reveals-secret-interpretation-patriot-act-allowing-nsa-to-collect-all-phone-call-data.shtml">notorious</a>, one crucial requirement is for backdoor searches of Americans to be first justified by a judicial warrant. While that process does not impose a significant operational burden on agencies, it does prevent the kinds of documented abuses that agency employees and contractors have already committed, which include <a href="http://www.slate.com/blogs/future_tense/2013/09/27/loveint_how_nsa_spies_snooped_on_girlfriends_lovers_and_first_dates.html">stalking</a> former lovers using the government's powerful spying tools.&#13;</p>
<p>Congress should also ensure that intelligence information is used exclusively to protect national security, instead of <a href="https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-laundering">polluting</a> the criminal legal system with raw intelligence that inherently fails to meet the standards required for evidence to be admitted in court. Congress should not allow powerful military-grade surveillance programs to be used for purposes like <a href="https://www.techdirt.com/articles/20140203/11143926078/parallel-construction-revealed-how-dea-is-trained-to-launder-classified-surveillance-info.shtml">routine</a> criminal law enforcement or <a href="http://www.detroitnews.com/story/news/local/detroit-city/2017/05/18/cell-snooping-fbi-immigrant/101859616/">tracking down</a> undocumented immigrants.&#13;</p>
<p>Congressional oversight of the intelligence agencies should also address issues beyond data collection. In the past, intelligence agencies have undermined attempts by Americans to ensure their own privacy, including by <a href="https://arstechnica.com/tech-policy/2014/05/photos-of-an-nsa-upgrade-factory-show-cisco-router-getting-implant/">intercepting</a> router shipments and planting covert firmware. Accordingly, Congress must adopt measures to protect <a href="https://www.eff.org/deeplinks/2016/02/apple-americans-and-security-vs-fbi">encryption</a> and encryption <a href="https://www.techdirt.com/articles/20130911/10302624487/details-reveal-crypto-standard-controlled-nsa-how-canada-helped.shtml">standards</a> from erosion by national security agencies. A restriction along these lines would also serve business interests, which have vocally decried losses amounting to billions of dollars driven by clients making the <a href="http://www.newsmax.com/Newsfront/nsa-spying-risks-billions/2013/09/10/id/524859/">rational decision</a> to buy encryption devices from other sources.&#13;</p>
<p>Finally, Congress must restore the opportunity for a robust public debate about these issues. That requires reforming the <a href="https://www.eff.org/nsa-spying/state-secrets-privilege">state secrets privilege</a> and fixing the <a href="https://www.eff.org/deeplinks/2012/07/secrecy-system-veers-absurdity-politicians-argue-more">broken classification</a> system described as “dysfunctional” by the former official who administered it. All too often, overclassification keeps policymakers and the public in the dark, and enables a bipartisan war on whistleblowers from whom congressional committees have learned the truth.&#13;</p>
<p>Regardless of what Congress does this fall, advocates will <a href="https://www.eff.org/cases/jewel">continue</a> to <a href="https://www.eff.org/cases/first-unitarian-church-los-angeles-v-nsa">challenge</a> the constitutionality of mass surveillance in the courts, where we have sought for over a decade to invoke the rule of law to restore limits on executive authority. Congress is currently considering surveillance policy, and we urge Congress to legislate limits to safeguard constitutional rights. If enough policymakers are pressed by informed and alarmed constituents, Congress will hopefully finish the job it <a href="https://freedom.press/news-advocacy/our-statement-on-congress-passing-the-usa-freedom-act-the-nsa-reform-bill/">already started</a>.&#13;</p>
<p><i>This article was originally <a href="http://www.truth-out.org/news/item/42169-national-security-agencies-are-evading-congressional-oversight">published</a> by Truthout, and is reprinted here with permission.</i></p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/jewel">Jewel v. NSA</a></div><div class="field__item odd"><a href="/ru/cases/first-unitarian-church-los-angeles-v-nsa">First Unitarian Church of Los Angeles v. NSA</a></div></div></div>Thu, 05 Oct 2017 01:32:52 +000097126 at https://www.eff.orgCommentaryNSA SpyingDecoding 702: What is Section 702?Shahid ButtarEurope's Courts Decide: Does U.S. Spying Violate Europe's Privacy?https://www.eff.org/ru/deeplinks/2017/10/europes-courts-decide-does-us-spying-violate-europes-privacy
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>In a long-awaited <a href="http://www.europe-v-facebook.org/sh2/ES.pdf">decision</a> on whether and how Europeans' private data can be protected from the roving eyes of the NSA, the Irish Commercial High Court this morning declared that <a href="https://www.dataprivacymonitor.com/enforcement/safe-harbor-is-dead-long-live-standard-contractual-clauses/">"standard contractual clauses"</a> —the procedure that tech companies like Facebook use to try to satisfy European privacy laws—should be reviewed by the European Union's top court, the Court of Justice (CJEU).&#13;</p>
<p class="FirstParagraph">The decision hands the court a key question that could affect millions of users and the business practices of Facebook and other tech giants: should tech companies be allowed to send the personal data of European customers across the Atlantic if they can’t guarantee that, once in U.S. data centers, the information won’t be vacuumed up by NSA surveillance?</p>
<p class="FirstParagraph">The decision follows a request for guidance by the Irish Data Protection Commissioner (DPC), who began to ask questions about the procedure after the collapse of the U.S/E.U. Privacy Safe Harbor rules, another method for legally transferring personal data that was <a href="https://www.eff.org/deeplinks/2015/10/europes-court-justice-nsa-surveilance">struck down by the CJEU in October 2015</a>. The case stems from complaints brought by Max Schrems, a tireless Austrian privacy activist and <a href="https://www.eff.org/press/releases/eff-announces-2016-pioneer-award-winners-malkia-cyril-center-media-justice-data" target="_blank">EFF Pioneer Award winner</a>, who has been <a href="http://europe-v-facebook.org/EN/en.html">pursuing U.S. companies</a> for violations of EU privacy law <a href="http://www.forbes.com/sites/kashmirhill/2012/02/07/the-austrian-thorn-in-facebooks-side/">since 2011.</a></p>
<p class="pull-quote">EU courts also care about the American mass surveillance of ordinary innocent Europeans</p>
<p>After the Safe Harbor fell, Internet companies, the E.U. Commission and the U.S. Department of Commerce scrambled to renegotiate a new "Privacy Shield," consisting of a new set of privacy promises from the private and public sector. However, this negotiation <a href="https://www.eff.org/deeplinks/2016/03/privacy-shield-riddled-surveillance-holes">mostly ignored</a> that the CJEU's rejection of the Safe Harbor centered not only on corporate misuse of private data but also its vulnerability to U.S. surveillance programs—particularly PRISM, which collected data directly from companies like Facebook. Apart from a flimsy assurance from the Director of National Intelligence that U.S. surveillance was <a href="http://ec.europa.eu/justice/data-protection/files/privacy-shield-adequacy-decision-annex-6_en.pdf">"reasonable,"</a> the Privacy Shield agreement included no direct reforms of American spying practice.&#13;</p>
<p>Last year, the Irish DPC asked the obvious follow-up question to all this activity (and one that <a href="https://www.eff.org/deeplinks/2015/10/europes-court-justice-nsa-surveilance">we've been asking</a> since the original CJEU decision): if the CJEU's problems with U.S. mass surveillance program were not addressed by Privacy Shield, is transfer of personal data from the Europe to the United States still unlawful?&#13;</p>
<p>More specifically, Facebook, whose European branch is based in Ireland, has been using "standard contractual clauses" (or "model clauses") to try to guarantee the privacy of the data it transfers to the United States. These clauses are an alternative to the Safe Harbor/Privacy Shield, and weren't part of the original CJEU decision.&#13;</p>
<p>The DPC asked the Irish court to reconsider the problem with standard contractual clauses in mind, and asked that the court refer its questions to CJEU so that the decision could made on a Europe-wide basis. (The DPC cannot refer matters to the CJEU on its own.)&#13;</p>
<p>Unlike an earlier Schrems case, which was largely ignored by the establishment as it wound through the Irish courts, this new court action attracted the immediate attention of Facebook and the U.S. government.&#13;</p>
<p>Facebook, as with other Internet companies relying on the free flow of personal data out of Europe, has a strong incentive to deny that the U.S. government's spying policies affects its business. The U.S. government meanwhile has always insisted the European Court of Justice made its original Safe Harbor judgement based on a misunderstanding of its domestic surveillance practices—and anyway, they added, they've improved a lot since then.&#13;</p>
<p>The decision confirms the suspicion of Ireland's privacy regulators (and EFF) that Facebook's business practices are not the only matters under the microscope in Europe: the EU courts also care about the American mass surveillance of ordinary innocent Europeans.&#13;</p>
<p>The judge in the matter, Justice Caroline Costello, said there were “well-founded concerns” that the contractual clauses used by Facebook don’t provide the kind of privacy safeguards required under European law. In <a href="http://www.europe-v-facebook.org/sh2/HCJ.pdf">an 153 page judgement</a> (<a href="http://www.europe-v-facebook.org/sh2/ES.pdf">summary)</a>, she concludes that:&#13;</p>
<blockquote><p>"The [Data Protection] Directive defines processing of personal data as including any operation or set of operations which is performed upon personal data such as collection... or otherwise making available the data. On the basis of this definition and the evidence in relation to the operation of the PRISM and Upstream programmes authorised under Section 702 of FISA, it is clear that there is mass indiscriminate processing of data by the United States government agencies."</p>
</blockquote>
<h2>Current United States Surveillance Reforms Are Not Enough</h2>
<p>In particular, the court rejected the U.S. government's claim that it had sufficiently cleaned up its act since the CJEU's last decision. To show its change of heart, the U.S. government cited statements that the intelligence services will no longer collect data <a href="https://www.eff.org/deeplinks/2017/04/end-nsas-about-searches-just-beginning">"about" a target</a>, and the recent success of <a href="https://www.aclu.org/blog/privacy-technology/internet-privacy/victory-court-allows-wikimedias-challenge-nsa-surveillance">Wikimedia to obtain its day in court</a> to challenge effect of surveillance on its own users.&#13;</p>
<p>These steps are certainly improvements to the overall state of mass surveillance and its oversight, but certainly don't reach the standard required by Europe's Court of Justice and the <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012P/TXT&amp;from=EN#d1e189-393-1">European Charter of Human Rights</a>.&#13;</p>
<p>First, while the NSA has stopped searching through the huge amount of data it collects for information “about” a target, there is no indication or evidence that this is reducing the amount of data that is subject to the NSA’s collection and searches. Based on public information, stopping "about" collection does little to limit the overall scope of surveillance under Section 702, which annually results in the collection of billions of communications from hundreds of thousands of people around the globe.&#13;</p>
<p>Second, while Wikimedia, and before that EFF’s clients in <a href="https://www.eff.org/cases/jewel">Jewel v. NSA</a>, have passed an initial test of standing, in the context of a basic motion to dismiss, courts presiding over these civil cases have yet to rule on the legality of surveillance. Meanwhile the U.S. government continues to contest the plaintiffs’ standing to litigate on the merits.&#13;</p>
<p>Third, these statements apply to "Upstream" collection; not the PRISM/"Downstream" surveillance program in which Facebook is most directly implicated.&#13;</p>
<p>The court also rejected the new systems created by the Privacy Shield negotiations, including the Judicial Redress Act, and the creation of a privacy ombudsperson. Regarding the ombudsperson, she writes that there is "a well-founded argument that the Ombudsman mechanism does not respect the essence of a fundamental right. It does not afford EU citizens fundamental protection. The Ombudsperson is not a judge and . . . critically, her decisions are not subject to judicial review."&#13;</p>
<p>Justice Costello concludes:&#13;</p>
<blockquote><p>In my opinion, despite the number of possible causes of action, it cannot be said that US law provides the right of every person to a judicial remedy for any breach of his data privacy by its intelligence agencies. On the contrary, the individual remedies are few and far between and certainly not complete or comprehensive.</p>
</blockquote>
<h2>Fixing Surveillance</h2>
<p>For the changes that the European courts want to see, we need serious statutory reform of surveillance in the United States, in its transparency, the breadth of its warrants, and the matter of individual redress. That's something that the U.S. politicians about to consider the <a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">renewal of Section 702</a> should bear in mind.&#13;</p>
<p>If the CJEU holds that U.S. surveillance violates European privacy laws, it will reject standard clauses, the new Privacy Shield, and any other method companies have used to shuttle private data from Europe to America. American businesses will be under a data embargo—until Congress fixes its spying mess.&#13;</p>
<p class="take-action"><a href="https://www.eff.org/cases/jewel">Take Action</a></p>
<p class="take-explainer"><a href="https://www.eff.org/cases/jewel">Tell Congress to pull the plug on Internet spying programs</a></p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/jewel">Jewel v. NSA</a></div></div></div>Tue, 03 Oct 2017 18:03:09 +000097101 at https://www.eff.orgCommentarySurveillance and Human RightsNSA SpyingDecoding 702: What is Section 702?Danny O&#039;BrienUpdate: EFF Lawsuit Results in Release of More FISC Opinionshttps://www.eff.org/ru/deeplinks/2017/09/update-eff-lawsuit-results-release-more-fisc-opinions
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The government has released eleven secret court orders and opinions as a result of an EFF lawsuit seeking to make significant decisions by the Foreign Intelligence Surveillance Court (FISC) public.&#13;</p>
<p>The documents, which you can read <a href="https://www.documentcloud.org/search/projectid:35411-FISC-Opinions-on-PR-TT-Released-09-25-2017">here</a>, primarily deal with requests by U.S. intelligence agencies to access <a href="https://www.documentcloud.org/documents/4060817-EFF-FOIA-Sep-25-Doc-1.html">business records</a> from private companies or to obtain <a href="https://www.documentcloud.org/documents/4060808-EFF-FOIA-Sep-25-Doc-6.html">non-content records</a> about phone calls and Internet communications under two provisions of the Foreign Intelligence Surveillance Act.&#13;</p>
<p>We’ve known for years that the intelligence community has abused these authorities—which ostensibly authorize the collection of records or surveillance on individual targets—to engage in mass surveillance. Most famously, the NSA used FISA’s business records authority to collect the <a href="https://www.theguardian.com/world/interactive/2013/jun/06/verizon-telephone-data-court-order">call records of millions of Americans</a>. And, from 2004 to 2011, the government also used FISA’s Pen Register/Trap and Trace provision to collect <a href="https://www.theguardian.com/world/2013/jun/27/nsa-data-mining-authorised-obama">Internet metadata of Americans</a> in bulk. &#13;</p>
<p>Although Congress passed the USA FREEDOM Act in 2015 to prohibit these bulk collection programs, it had long been suspected that the intelligence community had used these authorities to collect <i>other</i> types of information in bulk. &#13;</p>
<p>Another provision of USA FREEDOM required the government to declassify and release significant FISC opinions, and we had hoped the government would take the opportunity yesterday to declassify information about those programs. &#13;</p>
<p>They didn’t, despite USA FREEDOM’s requirement to do so. &#13;</p>
<p>In a <a href="https://www.documentcloud.org/documents/4060816-Cover-Letter-for-FOIA-Production-20170925.html">letter</a> to EFF accompanying the documents, the government said that they were withholding 12 additional records in full, claiming that their release would harm national security. And of the 11 documents released to EFF, they are so heavily redacted that it is difficult to tell what they authorize the government to do.&#13;</p>
<p>One of the <a href="https://www.documentcloud.org/documents/4060813-EFF-FOIA-Sep-25-Doc-10.html">documents</a> shows that the FISC apparently shared concerns with other <a href="https://www.leagle.com/decision/20061257441fsupp2d81611183">federal court judges</a> about the government’s aggressive interpretation of statutes authorizing collection of metadata from phone calls that could actually capture the contents of communications. This concern was previously <a href="https://theintercept.com/2016/07/27/in-secret-battle-surveillance-court-reined-in-fbi-use-of-information-obtained-from-phone-calls/">made public</a> as part of an earlier <a href="https://www.documentcloud.org/documents/2999267-EPIC-13-10-03-DOJ-FOIA-20160706-FourthProduction.html">FOIA suit</a> by the Electronic Privacy Information Center (EPIC).&#13;</p>
<p>The government’s latest release was the second batch of once-secret FISC records to become public as a result of <a href="https://www.eff.org/foia/significant-fisc-opinions">EFF’s Freedom of Information Act lawsuit</a> filed in 2016 seeking all significant opinions from the secret court.&#13;</p>
<p>In June, the government released the <a href="https://www.eff.org/deeplinks/2017/06/response-eff-lawsuit-doj-releases-18-new-opinions-fisc-concerning-section-702">first batch of FISC opinions</a> that concerned the government’s use of Section 702, the warrantless surveillance law set to expire in a few months. That release included an opinion showing that the FISC prevented a provider <a href="https://www.eff.org/deeplinks/2017/06/provider-fought-secret-surveillance-order-court-denied-it-access-relevant-law">from accessing relevant legal cases</a> as it sought to challenge a 702 directive.&#13;</p>
<p>The government plans to release a third and final batch of secret FISC records before the end of 2017.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/significant-fisc-opinions">Significant FISC Opinions</a></div></div></div>Tue, 26 Sep 2017 23:08:30 +000097060 at https://www.eff.orgNSA SpyingTransparencyAaron MackeyCongress is At Home, So Pay Your Members a Visithttps://www.eff.org/ru/deeplinks/2017/08/congress-home-so-pay-your-members-visit
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p dir="ltr">It’s August. In the United States, that means members of Congress will be swinging back home to their home districts to check in with their state-side staffers, hit some fundraisers, and maybe host a few public events.</p>
<p dir="ltr">You can meet them. Constituents can request meetings with members of Congress while they are home this August by contacting their local congressional offices. If you coordinate a meeting request with a few local allies, you’ll likely be able to meet with staffers, and you may even be able to meet with <a href="https://democracy.io/#!/">your member of Congress</a> herself.</p>
<p>Meetings like this matter—a lot. When members hear repeatedly from multiple constituents about overlapping concerns, those views can influence how they vote on policy issues, especially if they think those concerns will animate controversy that might complicate their careers. With so many issues vital to digital rights looming in the congressional calendar, this August is a critical time for Internet users to pressure Congress to do the right thing on mass surveillance, net neutrality, and rules that insulate platforms for liability based on content written by users.&#13;</p>
<p dir="ltr">Here are some of the key issues to bring up this August, whether in meetings with your Members of Congress, or when writing for public audiences:</p>
<h3 dir="ltr">Ending mass surveillance under Section 702 of the FISA Amendments Act</h3>
<p dir="ltr">At the end of the year, a key provision of U.S. surveillance law is set to expire, Section 702. This is the law underpinning the NSA’s mass surveillance of Internet communications—including content—of foreign persons outside the United States, who of course communicate with Americans. Thanks to the Snowden revelations, we now know that millions of Americans are impacted by this surveillance <a href="http://thehill.com/blogs/pundits-blog/homeland-security/342024-how-many-americans-are-swept-up-in-the-nsas-snooping">(the exact number of which the government refuses to disclose</a>) and Congress must vote to either reauthorize the law, or allow it to expire as scheduled. We know Congress will take this up in the next few months, so now is the ideal time to deliver a simple message: this surveillance is unconstitutional and unacceptable, and Congress should <a href="https://www.eff.org/deeplinks/2016/06/end-702">allow this dangerous provision to expire</a> unless it first enacts significant reforms to curtail mass surveillance powers. Above all, Congress should resist attempts to make this provision of law permanent by insisting that any potential re-authorization include a five-year sunset.</p>
<h3 dir="ltr">Defending protections that enable free expression on the Internet</h3>
<p dir="ltr">There's a dangerous new threat in Congress to your right to free speech and expression online, and it's already gained the support of a frightening number of lawmakers. The <a href="https://www.eff.org/deeplinks/2017/08/internet-censorship-bill-would-spell-disaster-speech-and-innovation">Stop Enabling Sex Traffickers Act</a> (SESTA, S. 1693) wouldn’t help punish sex traffickers. What it would do is drastically weaken 47 U.S.C. § 230 (commonly known as "CDA 230" or simply “Section 230”), one of the most important laws protecting free expression online. It would expose startups that run online services to the risk of overwhelming criminal and civil liability for the actions of their users. Sex trafficking is a serious problem, and Congress should be applauded for turning its attention to it, but this bill is not the solution. We support a clear message to Congress: don't support SESTA or any other attempt to weaken protections for online speech under Section 230. If you run or work in a business that relies on Section 230 protections, then explain to your members of Congress how SESTA would threaten your job.</p>
<h3>Defending net neutrality rules that preserve equal opportunity online</h3>
<p dir="ltr">A few months ago, incoming Federal Communications Commission Chair Ajit Pai announced his plans to eliminate the clear, enforceable protections for net neutrality that the Commission had implemented in 2015. People have filed a record-breaking 18 million comments with the FCC, the majority of them opposing the Commission’s plan to roll back protections for net neutrality (and <a href="https://dearfcc.org/">it’s not too late to submit your own</a>). Now, <a href="https://www.eff.org/deeplinks/2017/08/dont-let-congress-compromise-net-neutrality">Congress is planning a hearing on the issue</a> in September. Members of Congress must hear from their constituents that net neutrality protections are essential for our right to communicate and organize online. Without the FCC’s light-touch rules protecting net neutrality, corporate and other dominant voices would be able to pay for fast lanes, leaving competing startups, whistleblowers, or people with minority views without access to a fair playing field. Tell your Member of Congress why a free, open, and content-neutral Internet matters to you and your community. Finally, if you can visit Washington in September, <a href="https://www.eventbrite.com/e/net-neutrality-day-of-advocacy-tickets-36836518017">sign up</a> to join the fly-in day to defend net neutrality.</p>
</div></div></div>Tue, 15 Aug 2017 17:44:17 +000096762 at https://www.eff.orgCall To ActionNSA SpyingNet Neutralityrainey ReitmanEFF Urges Supreme Court to Take On Unconstitutional NSA Surveillance, Reverse Dangerous Ruling That Allows Massive Government Spying Programhttps://www.eff.org/ru/press/releases/eff-urges-supreme-court-take-unconstitutional-nsa-surveillance-reverse-dangerous
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Nation’s Highest Court Being Asked for the First Time to Weigh In On Legality of NSA’s PRISM Spying</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">WASHINGTON, D.C.—The Electronic Frontier Foundation (EFF) <a href="https://www.eff.org/document/mohamud-eff-cert-petition" target="_blank">asked</a> the Supreme Court to review and overturn an unprecedented ruling allowing the government to intercept, collect, and store—without a warrant—millions of Americans’ electronic <span> </span>communications, including emails, texts, phone calls, and online chats.</p>
<p class="MsoNormal"></p>
<p class="MsoNormal">This warrantless surveillance is conducted by U.S. intelligence agencies under <a href="https://www.eff.org/document/section-702-myths-v-facts" target="_blank">Section 702</a> of the Foreign Intelligence Surveillance Act<span>. The law is exceedingly broad—<a href="https://www.eff.org/document/702-one-pager-adv" target="_blank">Section 702</a> allows the government to conduct surveillance of <i>any</i> foreigner abroad­—and the law fails to protect the constitutional rights of Americans whose texts or emails are <a href="https://www.eff.org/deeplinks/2013/07/what-it-means-be-target-or-why-we-once-again-stopped-believing-government-and-once" target="_blank">“incidentally” collected</a> when communicating with those people. </span></p>
<p class="MsoNormal"></p>
<p class="MsoNormal"><span>This <a href="https://www.theguardian.com/world/2013/aug/09/nsa-loophole-warrantless-searches-email-calls" target="_blank">warrantless surveillance of Americans</a> is unconstitutional and should be struck down.</span></p>
<p class="MsoNormal"></p>
<p class="MsoNormal"><span>Yet the U.S. Court of Appeals for the Ninth Circuit, <a href="https://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/05/14-30217.pdf" target="_blank">ruling</a> in <i>U.S. v. Mohamud</i>, decided that the Fourth Amendment doesn’t apply to Americans whose communications were intercepted incidentally and searched without a warrant. </span>The case centered on <a href="https://www.eff.org/deeplinks/2014/05/government-explains-away-fourth-amendment-protection-digital-communications" target="_blank">Mohammed Mohamud</a>, an American citizen who in 2012 was charged with plotting to bomb a Christmas tree lighting ceremony in Oregon. After he had already been convicted, Mohamud was told for the first time that information used in his prosecution was obtained using Section 702. Further disclosures clarified that the government used the surveillance program known as <a href="https://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data" target="_blank">PRISM</a>, which <span>gives U.S. intelligence agencies access to communications in the possession of Internet service providers such as Google, Yahoo, or Facebook, to obtain the emails at issue in the case. </span>Mohamud sought to suppress evidence gathered through the warrantless spying, arguing that Section 702 was unconstitutional.</p>
<p class="MsoNormal"><span>In a dangerous and unprecedented ruling, the Ninth Circuit upheld the warrantless search and seizure of Mohamud’s emails. EFF, the Center for Democracy &amp; Technology, and New America’s Open Technology Institute filed an <a href="https://www.eff.org/document/mohamud-eff-cert-petition" target="_blank">amicus brief</a> today asking the Supreme Court to review that decision.</span></p>
<p class="MsoNormal"><span>“The ruling provides an end-run around the Fourth Amendment, converting sweeping warrantless surveillance directed at foreigners into <a href="https://www.washingtonpost.com/world/national-security/in-nsa-intercepted-data-those-not-targeted-far-outnumber-the-foreigners-who-are/2014/07/05/8139adf8-045a-11e4-8572-4b1b969b6322_story.html" target="_blank">a tool for spying on Americans</a>,” said EFF Senior Staff Attorney Mark Rumold. “Section 702 is unlike any surveillance law in our country’s history, it is unconstitutional, and the Supreme Court should take this case to put a stop to this surveillance.” </span></p>
<p class="MsoNormal"><span>Section 702, which is set to expire in December unless Congress reauthorizes it, provides the government with broad authority to collect, retain, and search Americans’ international communications, even if they don’t contain any foreign intelligence or evidence of a crime. </span></p>
<p class="MsoNormal"><span>“We urge the Supreme Court to review this case and Section 702, which subjects Americans to warrantless surveillance <a href="https://www.eff.org/deeplinks/2017/06/nsa-reneges-promise-tell-congress-how-many-innocent-americans-it-spies" target="_blank">on an unknown scale</a>,” said EFF Staff Attorney Andrew Crocker. “We have long advocated for reining in NSA mass surveillance, and the ‘incidental’ collection of Americans’ private communications under Section 702 should be held unconstitutional once and for all.”</span></p>
<p class="MsoNormal"><span> For the amicus brief:<br /><a href="https://www.eff.org/document/mohamud-eff-cert-petition" target="_blank">https://www.eff.org/document/mohamud-eff-cert-petition</a><br /></span></p>
<p class="MsoNormal"><span>For more on Section 702:<br /><a href="https://www.eff.org/document/702-one-pager-adv" target="_blank">https://www.eff.org/document/702-one-pager-adv</a></span></p>
<p class="MsoNormal"><span>For more on NSA spying:<br /></span><a href="https://www.eff.org/nsa-spying" target="_blank"><span>https://www.eff.org/nsa-spying</span></a></p>
<p class="MsoNormal"> </p>
</div></div></div><div class="field field--name-field-contact field--type-node-reference field--label-above"><div class="field__label">Contact:&nbsp;</div><div class="field__items"><div class="field__item even"><div class="ds-1col node node--profile node--promoted view-mode-node_embed node--node-embed node--profile--node-embed clearfix">
<div class="">
<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Mark</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Rumold</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Senior Staff Attorney</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:mark@eff.org">mark@eff.org</a></div></div></div> </div>
</div>
</div><div class="field__item odd"><div class="ds-1col node node--profile view-mode-node_embed node--node-embed node--profile--node-embed clearfix">
<div class="">
<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Andrew</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Crocker</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Staff Attorney</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:andrew@eff.org">andrew@eff.org</a></div></div></div> </div>
</div>
</div></div></div>Thu, 10 Aug 2017 18:13:27 +000096742 at https://www.eff.orgKaren GulloAT&T, Verizon, Other Telco Providers Lag Behind Tech Industry in Protecting Users from Government Overreach, EFF Annual Survey Showshttps://www.eff.org/ru/press/releases/att-verizon-other-telco-providers-lag-behind-tech-industry-protecting-users
<div class="field field--name-field-pr-subhead field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Amazon Fails To Follow, Much Less Lead in Privacy Best Practices, Facebook, Google, and Microsoft Fail to Promise They Will Stand Up to FBI Gag Orders</div></div></div><div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p class="MsoNormal">San Francisco, California—While many technology companies continue to step up their privacy game by adopting best practices to protect sensitive customer information when the government demands user data, telecommunications companies are failing to prioritize user privacy when the government comes knocking, an EFF annual survey shows. Even tech giants such as Apple, Facebook, and Google can do more to fully stand behind their users.</p>
<p class="MsoNormal"></p>
<p class="MsoNormal">EFF’s seventh annual <i><a href="https://www.eff.org/who-has-your-back-2017">“Who Has Your Back”</a></i> report, released today, digs into the ways many technology companies are getting the message about user privacy in this era of unprecedented digital surveillance. The data stored on our mobile phones, laptops, and especially our online services can, when aggregated, paint a detailed picture of our lives—where we go, who we see, what we say, our political affiliations, our religion, and more.</p>
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<p class="MsoNormal">“This information is a magnet for governments seeking to surveil citizens, journalists, and activists. When governments do so, they need to follow the law, and users are increasingly demanding that companies holding their data enact the toughest policies to protect customer information,” said EFF Activism Director Rainey Reitman.</p>
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<p class="MsoNormal">EFF evaluated the public policies at 26 companies and awarded stars in five categories. This year EFF included two new categories: “promises not to sell out users,” and “stands up to NSL gag orders.” The first reflects our concern about the stated goal of several members of government to co-opt<span class="MsoCommentReference"><span> </span></span>tech companies to track people by their immigration status or religion. We awarded stars to companies that prohibit developers and third parties from capturing user data to assist governments in conducting surveillance.</p>
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<p class="MsoNormal">We also awarded stars to companies that exercise their right to make the government initiate judicial review of gag orders that prohibit them from publicly disclosing they have received a National Security Letter (NSL). NSLs—secret FBI demands for user information issued with no oversight from any court—permit the FBI to unilaterally gag recipients, a power EFF believes is unconstitutional. <span>Facebook, Google, and Microsoft have failed to promise to step up and exercise the right to have the government put NSL gag orders before a court.</span></p>
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<p class="MsoNormal">Nine companies earned stars in every category this year: Adobe, Credo, Dropbox, Lyft, Pinterest, Sonic, Uber, Wickr, and Wordpress. Each has a track record of defending user privacy against government overreach and improved on their practices to meet the more stringent standards in this year’s <i>Who Has Your Back</i>.</p>
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<p class="MsoNormal">Two tech companies lagged behind in the industry: Amazon and WhatsApp, both of which earned just two stars. EFF’s survey showed that while both companies have done significant work to defend user privacy—EFF especially lauds WhatsApp’s move to adopt end-to-end encryption by default for its billion users around the world—their policies still lag behind. Online retail giant Amazon has been rated <a href="http://www.businesswire.com/news/home/20170222005462/en/Amazon-Customers-1-Corporate-Reputation-Ranking-23000">number one</a> in customer service, yet it hasn’t made the public commitments to stand behind its users’ digital privacy that the rest of the industry has.</p>
<p class="MsoNormal"></p>
<p class="MsoNormal">AT&amp;T, Comcast, T-Mobile, and Verizon scored the lowest, each earning just one star. While they have adopted a number of industry best practices, like publishing transparency reports and requiring a warrant for content, they still need to commit to <span>informing users before disclosing their data to the government and creating a public policy of requesting judicial review of all NSLs.</span></p>
<p class="MsoNormal"></p>
<p class="MsoNormal"><span>“T</span>he tech industry as a whole has moved toward providing its users with more transparency, but telecommunications companies—which serve as the pipeline for communications and Internet service for millions of Americans—are failing to publicly push back against government overreach,” said EFF Senior Staff Attorney Nate Cardozo. “Both legacy telcos and the giants of Silicon Valley can and must do better. We expect companies to protect, not exploit, the data we have entrusted them with.”</p>
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<p class="MsoNormal">For the full report:<br /><a href="https://www.eff.org/who-has-your-back-2017">https://www.eff.org/who-has-your-back-2017</a></p>
<p class="MsoNormal">For more on <i>Who Has Your Back</i>:<br /><a href="https://www.eff.org/node/81897">https://www.eff.org/node/81897</a></p>
<p class="MsoNormal">For more on government surveillance:<br /><a href="https://www.eff.org/nsa-spying">https://www.eff.org/nsa-spying</a></p>
<p class="MsoNormal"> </p>
</div></div></div><div class="field field--name-field-contact field--type-node-reference field--label-above"><div class="field__label">Contact:&nbsp;</div><div class="field__items"><div class="field__item even"><div class="ds-1col node node--profile node--promoted view-mode-node_embed node--node-embed node--profile--node-embed clearfix">
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<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Rainey</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Reitman</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Activism Director</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:rainey@eff.org">rainey@eff.org</a></div></div></div> </div>
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<div class="field field--name-field-profile-first-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Nate</div></div></div><div class="field field--name-field-profile-last-name field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Cardozo</div></div></div><div class="field field--name-field-profile-title field--type-text field--label-hidden"><div class="field__items"><div class="field__item even">Senior Staff Attorney</div></div></div><div class="field field--name-field-profile-email field--type-email field--label-hidden"><div class="field__items"><div class="field__item even"><a href="mailto:nate@eff.org">nate@eff.org</a></div></div></div> </div>
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</div></div></div>Mon, 10 Jul 2017 13:55:52 +000096499 at https://www.eff.orgKaren GulloTrump’s FBI Pick Has a Troubling History on Digital Libertieshttps://www.eff.org/ru/deeplinks/2017/07/trumps-fbi-pick-has-troubling-history-digital-liberties
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>President Donald Trump’s pick to lead the FBI, Christopher Wray, will begin his confirmation process <a href="https://www.judiciary.senate.gov/meetings/07/12/2017/nominations">next week</a>, giving lawmakers an opportunity to press him on his previous statements about expansive surveillance authorities and aggressive copyright prosecution.&#13;</p>
<h2><b>Defense of the USA PATRIOT Act</b></h2>
<p>During his tenure as Assistant Attorney General in the Bush Administration, Wray vocally defended a range of controversial provisions in the USA PATRIOT Act—including Section 215, which would later provide the basis for the bulk collection of Americans’ telephone metadata.&#13;</p>
<p>When Wray went before the Senate Judiciary Committee in 2003 to defend the PATRIOT Act, a Department of Justice document indicated that Section 215’s business records provision had <a href="http://www.cnn.com/2003/LAW/09/17/ashcroft.patriot/">never been used</a>. Wray insisted that was a sign of restraint: “We try to use these provisions sparingly, only in those instances where we feel that this is the only tool that we can use.” In fact, as the Privacy and Civil Liberties Oversight Board (PCLOB) made clear in its <a href="https://www.nsa.gov/about/civil-liberties/resources/assets/files/pclob_report_on_telephone_records_program.pdf">report</a> on the bulk metadata program, Section 215 was sitting fallow because the Bush Administration was <a href="http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm">already collecting</a> much of that data—without statutory authorization.&#13;</p>
<p>Granted, Wray didn’t have all of the information about that secretive wiretapping program until 2004, which we’ll get into below. Still, his insistence that Section 215 was just an effort to bring counterterrorism powers in line with ordinary criminal authorities reflected a concerning lack of skepticism about the risk of abuse. The same holds for his defense of a range of other PATRIOT Act provisions: “<a href="https://www.eff.org/deeplinks/2014/10/peekaboo-i-see-you-government-uses-authority-meant-terrorism-other-uses">sneak and peek</a>” warrants that allow law enforcement to search first and serve notice later; a reduced bar for obtaining a FISA warrant that one district court later found <a href="http://www.nytimes.com/2007/09/27/washington/27patriot.html">inconsistent with the Fourth Amendment</a>; and a vaguely worded expansion of the kind of Internet data, some of it potentially very sensitive, that can be collected with a pen/trap order.&#13;</p>
<p>Experience teaches that broad grants of surveillance authority are invariably abused, as the PATRIOT Act has been. During Wray’s confirmation process, lawmakers should press him on his insistence that the Act “helped preserve and protect liberty and freedom, not erode them.”&#13;</p>
<h2><b>Outstanding Questions about STELLARWIND</b></h2>
<p>President Bush’s sweeping constellation of warrantless surveillance programs, codenamed STELLARWIND, played a key role in the mythos that surrounded the last two FBI Directors. Wray was <a href="https://www.washingtonian.com/2013/05/30/forged-under-firebob-mueller-and-jim-comeys-unusual-friendship/">reputedly</a> one of the senior Justice Department officials ready to resign if then-Deputy Attorney General James Comey chose to do so over STELLARWIND’s legality—though Wray himself wasn’t aware of its existence at the time. Wray has since praised then-FBI Director Bob Mueller’s willingness to challenge President Bush over those surveillance programs, telling <a href="https://www.wired.com/2017/06/christopher-wray-fbi-director/">WIRED</a>, “I think that the great thing about [people with] strong moral compasses is that they don’t have to hand-wring. When they’re uncomfortable, they know what they have to do.”&#13;</p>
<p>But when Wray was confronted with a constitutional concern about those intelligence efforts, his response, as reflected in a <a href="https://www.nytimes.com/interactive/2015/04/25/us/25stellarwind-ig-report.html">2009 inspector general report</a>, seems to have been underwhelming. Wray was read into STELLARWIND in 2004 to address concerns that the government—in working to preserve the spying program’s secrecy—was failing to disclose potentially exculpatory material to which criminal defendants were entitled under the Constitution. As the Justice Department’s Inspector General later found, “[T]he Department made little effort to understand and comply with its discovery obligations with Stellar Wind-derived information for the first several years of the program.” What legal analysis had been conducted was, the IG would later write, “factually flawed and inadequate.”&#13;</p>
<p>Wray and another attorney in the Justice Department’s Criminal Division were tasked with reviewing it. But beyond ordering the other attorney to write a memo of his own, it’s not clear Wray took any action to remedy the problem. While the memo recommended further research, there seems to have been no follow up. Four years after Wray left the Justice Department, its Inspector General would write that efforts to comply with the Constitution and other legal responsibilities “are not complete and do not fully ensure that the government has met its discovery obligations.”&#13;</p>
<p>Before he’s given the top job at the country’s law enforcement agency, Wray should have to square his praise for officials willing to challenge unconstitutional surveillance with his apparent inaction on a constitutional question about the rights of defendants swept up in spying programs.&#13;</p>
<h2><b>Aggressive Copyright Prosecutions</b></h2>
<p>As Assistant Attorney General for the Criminal Division, Wray also oversaw and touted the Justice Department’s aggressive prosecutions for intellectual property infringement, some of them alarmingly trivial. In 2004, for instance, Wray <a href="https://www.gpo.gov/fdsys/pkg/CHRG-108shrg98207/pdf/CHRG-108shrg98207.pdf">named</a> a guilty plea from a defendant who shared a pre-release copy of “The Hulk” in a chat room as one of the most significant intellectual property prosecutions of the year. That emphasis seems disproportionate, to say the least. As Senator Leahy put it in the same Judiciary Committee hearing, “That movie sank like a rock at the box office. Within a couple of weeks, they probably could not have given away the copies.” Still, the impact on the defendant was very real—including six months’ home confinement.&#13;</p>
<p>In a climate in which copyright law is increasingly abused to <a href="https://www.eff.org/issues/dmca">chill and deter</a> speech online, Wray’s past comments are cause for concern. Lawmakers should press him to commit to reasonable enforcement and respect for free expression protections.&#13;</p>
<h2>An Obligation to Explain—and Reconsider</h2>
<p>If confirmed, Christopher Wray will lead an agency with vast power to intrude on fundamental digital liberties. During his last tour in government service, he expressed views that should concern everyday Internet users. During this upcoming confirmation process, we expect lawmakers to review Wray’s record, and we hope he will disavow some of his more dangerous views on the government surveillance activities that we know to violate our core civil liberties. </p>
</div></div></div>Fri, 07 Jul 2017 20:18:05 +000096482 at https://www.eff.orgNSA SpyingPATRIOT ActGrayson ClaryCongress Needs to End Warrantless Spying, Not Make It Permanenthttps://www.eff.org/ru/deeplinks/2017/06/congress-needs-end-warrantless-spying-not-make-it-permanent
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Lawmakers are getting serious about renewing the U.S. government’s Internet spying powers, so we need to get serious about stopping their bad proposals.&#13;</p>
<p>First out of the gate is a bill from Sen. Tom Cotton, an ardent defender of government surveillance. His bill would not just reauthorize, but make permanent the expiring measure that the government says justifies the warrantless surveillance of innocent Americans’ online communications—Section 702, as enacted by the FISA Amendments Act. His bill (S. 1297) is supported by several Republicans in the Senate, including Senate Intelligence Chairman Richard Burr and Sens. John Cornyn, John McCain, and Lindsey Graham.&#13;</p>
<p>Section 702 surveillance <a href="https://www.eff.org/deeplinks/2017/04/end-nsas-about-searches-just-beginning">violates the privacy rights of millions of people</a>. This warrantless spying should not be allowed to continue, let alone be made permanent as is.&#13;</p>
<p>As originally enacted, Section 702 expires every few years, giving lawmakers the chance to reexamine the broad spying powers that impact their constituents. This is especially crucial as technology evolves and as more information about how the surveillance authority is actually used comes to light, whether through government publication or in the press.&#13;</p>
<p>If Congress were to approve Cotton’s bill, lawmakers would not only be ignoring their constituents’ privacy concerns, but they would also be ceding their obligation to regularly review, debate, and update the law. That is not acceptable.&#13;</p>
<p>Luckily, there’s already opposition to the proposal to make Section 702 permanent. During recent hearings at the Senate Intelligence and Judiciary Committees on Section 702 surveillance, Sen. Dianne Feinstein—who has historically been sympathetic to the intelligence community—said she could not support a bill that makes Section 702 permanent.&#13;</p>
<p>Now we need other members of Congress to make the same stand. We cannot accept lawmakers ignoring our privacy concerns and their responsibility to review surveillance law, and our lawmakers need to hear that.&#13;</p>
<p><a href="https://act.eff.org/action/tell-congress-don-t-make-internet-spying-powers-permanent">Sign our petition</a> today and tell Congress to oppose S. 1297 and the permanent reauthorization of Section 702 spying.&#13;</p>
<p class="take-action"><a href="https://act.eff.org/action/tell-congress-don-t-make-internet-spying-powers-permanent">Take Action</a></p>
<p class="take-explainer"><a href="https://act.eff.org/action/tell-congress-don-t-make-internet-spying-powers-permanent">TELL CONGRESS TO END WARRANTLESS SURVEILLANCE</a></p>
</div></div></div>Sat, 01 Jul 2017 16:37:35 +000096416 at https://www.eff.orgNSA SpyingKate TummarelloAs a Provider Fought a Secret Surveillance Order, Court Denied It Access to Relevant Lawhttps://www.eff.org/ru/node/96270
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The U.S. government’s foreign surveillance law is so secretive that not even a service provider challenging an order issued by a secret court got to access it. &#13;</p>
<p>That <a href="https://www.eff.org/deeplinks/2016/12/problem-our-surveillance-laws-report-exposes-deeply-rooted-governmental-secrecy">Kafkaesque episode</a>—denying a party access to the law being used against it—was made <a href="https://www.eff.org/deeplinks/2017/06/response-eff-lawsuit-doj-releases-18-new-opinions-fisc-concerning-section-702">public this week</a> in a FISC opinion EFF obtained as part of a FOIA lawsuit we filed in 2016.&#13;</p>
<p>The <a href="https://www.documentcloud.org/documents/3865012-Eff-16-Cv-02041hsg-Doc-12-06-13-17-Redacted.html">opinion</a> [.pdf] shows that in 2014, the Foreign Intelligence Surveillance Court (FISC) rejected a service provider’s request to obtain other FISC opinions that government attorneys had cited and relied on in court filings seeking to compel the provider’s cooperation. &#13;</p>
<p>The decision was related to the provider’s ultimately <a href="https://www.nytimes.com/2017/06/14/us/nsa-surveillance.html?rref=collection%2Fbyline%2Fcharlie-savage&amp;action=click&amp;contentCollection=undefined&amp;region=stream&amp;module=stream_unit&amp;version=latest&amp;contentPlacement=2&amp;pgtype=collection&amp;_r=0">unsuccessful challenge</a> to a surveillance directive it received under Section 702, the warrantless surveillance authority that is set to expire this year.&#13;</p>
<p>The decision is startling because it demonstrates how secrecy jeopardizes one of the most fundamental principles of our justice system: everyone gets to know what the law is. Apparently, that principle doesn’t extend to the FISC. &#13;</p>
<p>The provider’s request came up amid legal briefing by both it and the DOJ concerning its challenge to a 702 order. After the DOJ cited two earlier FISC opinions that were not public at the time—one from 2014 and another from 2008—the provider asked the court for access to those rulings.&#13;</p>
<p>The provider argued that without being able to review the previous FISC rulings, it could not fully understand the court’s earlier decisions, much less effectively respond to DOJ’s argument. The provider also argued that because attorneys with Top Secret security clearances represented it, they could review the rulings without posing a risk to national security. &#13;</p>
<p>The court disagreed in several respects. It found that the court’s rules and Section 702 prohibited the documents’ release. It also rejected the provider’s claim that the Constitution’s Due Process Clause entitled it to the documents.&#13;</p>
<p>The opinion goes on: “Beyond what is compelled by the Due Process Clause, the Court is satisfied that withholding the Requested Opinions does not violate common-sense fairness.” This was because the Court believed that the DOJ had accurately represented the rulings in its legal briefs and did not mislead the provider about what those rulings said. &#13;</p>
<p>The court also said that even if the opinions were released, they “would be of little, if any assistance” to the merits of the provider’s arguments. &#13;</p>
<p>The court’s opinion notwithstanding, there is nothing fair about withholding important legal cases—which likely interpreted or created law—from one side in a legal dispute. &#13;</p>
<p>The court’s decision is akin to allowing one party to read and cite to a Supreme Court case while prohibiting the other side from doing the same. It fundamentally disadvantages one side in a legal fight, on top of denying it access to the case to ensure that the party in the know is accurately representing the ruling.&#13;</p>
<p>In the case of the provider, the deck was always stacked against its ability to challenge the 702 order. The FISC traditionally only hears from one party—the Executive Branch—and is usually sympathetic to claims of national security. &#13;</p>
<p>Although recent changes to the FISC as a result of <a href="https://www.eff.org/deeplinks/2015/05/usa-freedom-act-passes-what-we-celebrate-what-we-mourn-and-where-we-go-here">USA Freedom Act</a> have moved in the right direction, including the ability for outside parties to argue before the court, the DOJ still has many advantages.&#13;</p>
<p>In the case of the provider, the trump card was that the DOJ’s lawyers got to read and rely on cases that the provider never got to see. &#13;</p>
<p>To be sure, the unjust result is not entirely the fault of the FISC. As the ruling points out, Congress has provided little to no recourse for a party challenging secret surveillance orders to be able to obtain documents and FISC rulings that are directly relevant to its case.&#13;</p>
<p>With Section 702 due to sunset this year, Congress should recognize that the court system it set up to approve surveillance orders and hear challenges to those orders bears little resemblance to our broader justice system. This inequity corrupts our fundamental democratic principles and is yet another reason Congress must end Section 702.</p>
</div></div></div>Thu, 15 Jun 2017 22:05:13 +000096270 at https://www.eff.orgCommentaryNSA SpyingAaron MackeyNSA Reneges on Promise to Tell Congress How Many Innocent Americans it Spies Onhttps://www.eff.org/ru/deeplinks/2017/06/nsa-reneges-promise-tell-congress-how-many-innocent-americans-it-spies
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Lawmakers should know how the laws they pass impact their constituents. That’s especially true when the law would reauthorize a vast Internet and telephone spying program that collects information about millions of law-abiding Americans.&#13;</p>
<p>But that’s exactly what the Intelligence Community wants Congress to do when it considers reauthorizing a sweeping electronic surveillance authority under the expiring Section 702, as enacted by the FISA Amendments Act, before the end of the year.&#13;</p>
<p>Intelligence officials have been promising Congress they would provide lawmakers with an estimate of the number of American communications that are collected under Section 702. That estimate is a critical piece of information for lawmakers to have as they consider whether and how to reauthorize and reform the warrantless Internet surveillance of millions of innocent Americans in the coming months.&#13;</p>
<p>But during <a href="https://www.eff.org/deeplinks/2017/06/liveblogging-todays-senate-intelligence-hearing-section-702">a hearing on Section 702</a> in front of the Senate Intelligence Committee yesterday, Director of National Intelligence Dan Coats, despite previous assurances, said he won’t be providing that estimate out of national security and, ironically, privacy concerns.&#13;</p>
<p>He told lawmakers it is “infeasible to generate an exact, accurate, meaningful, and responsive methodology that can count how often a U.S. person’s communications may be incidentally collected under Section 702.” To do so would require diverting NSA analysts’ attention away from their current work to “conduct additional significant research” to determine whether the communications collected under Section 702 are American. “I would be asking trained NSA analysts to conduct intense identity verification research on potential U.S. persons who are not targets of an investigation,” he said. “From a privacy and civil liberties perspective, I find this unpalatable.”&#13;</p>
<p>From a privacy and civil liberties perspective, we find it unpalatable that the Intelligence Community would ask Congress to reauthorize a controversial surveillance program without first following through on the promise—<a href="https://www.eff.org/deeplinks/2017/03/trumps-director-national-intelligence-pick-wrong-side-surveillance-encryption">reiterated by Coats</a> as recently as earlier this year—to provide some much needed information about how the program impacts Americans. To do so supposedly in the name of privacy concerns is even worse.&#13;</p>
<p>It should go without saying: if the Intelligence Community is truly worried about the privacy and civil liberties of ordinary Americans, officials will take the looming Section 702 sunset as an opportunity to give lawmakers the information they need to have an informed and meaningful debate about how government spying programs impact Americans’ privacy.&#13;</p>
<p>Privacy advocate Sen. Ron Wyden criticized DNI Coats for his backtracking, calling his reversal a “very, very damaging position to stake out.” He warned, “We’re going to battle it out in the course of this, because there are a lot of Americans that share our view that security and liberty are not mutually exclusive.”&#13;</p>
<p>And that battle is already happening. With Congress’ debate over Section 702 reauthorization heating up, now is the time to <a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">tell your representatives in Congress</a> to let this warrantless spying authority lapse.&#13;</p>
<p class="take-action"><a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">Take Action</a></p>
</div></div></div>Thu, 08 Jun 2017 23:53:01 +000096187 at https://www.eff.orgNSA SpyingPrivacyKate TummarelloLiveblogging Today's Senate Intelligence Hearing on Section 702https://www.eff.org/ru/deeplinks/2017/06/liveblogging-todays-senate-intelligence-hearing-section-702
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p dir="ltr">The debate over expiring online spying powers is heating up.</p>
<p dir="ltr">The Senate Intelligence Committee is holding an <a href="https://www.intelligence.senate.gov/hearings/open-hearing-fisa-legislation-0">open hearing</a> on Section 702, as enacted by the FISA Amendments Act, which is set to sunset at the end of the year. The House Judiciary Committee held its own <a href="https://www.eff.org/deeplinks/2017/03/live-blogging-todays-section-702-hearing">hearing</a> on the issue earlier this year.</p>
<p dir="ltr">In court and to Congress, we’ve long argued that the sweeping Internet surveillance programs under Section 702 is privacy invasive and unconstitutional. <a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">Tell your representatives</a> in Congress to protect their constituents’ privacy and let this warrantless spying power lapse.</p>
<p dir="ltr">Below, we’ll be liveblogging today’s Senate Intelligence hearing.</p>
<p dir="ltr">------------------------------------------------------------------</p>
<p dir="ltr">9:40 a.m. (PDT) -- The public portion of the hearing has been adjourned. Note, there was significant discussion of the various investigations into alleged collusion between the Trump Administration and Russia. We focused this liveblog on stated purpose of the hearing however: the reauthorization of Section 702 and the unconstitutional mass surveillance programs the NSA operates under its authority.</p>
<p dir="ltr">9:39 a.m. (PDT) -- Senator Wyden was recognized for one additional question towards the end of the hearing. Wyden asked “I’d like a yes or no answer on this: can the government use FISA Section 702 to collect communications that it knows are entirely domestic?”</p>
<p dir="ltr">DNI Coats responded, “Not to my knowledge; that would be against the law.”</p>
<p dir="ltr">Wyden has been known to ask questions of intelligence officials which he already knows the answer to and knows that the intelligence official will answer less-than-honestly. Famously, in 2013, Senator Wyden asked then-DNI Clapper “does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” Clapper’s answer was simply false in light of what we now know: “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”</p>
<p dir="ltr">9:00 a.m. (PDT) -- NSA Director Michael Rogers left open the possibility that the agency would look to restart the controversial “about searches.” In response to questions from Sen. James Lankford, Rogers walked lawmakers through the NSA-directed audit and resulting Foreign Intelligence Surveillance Court ruling that led the agency to stop searching the content of all communications intercepted under Section 702 for communications merely mentioning an authorized target. </p>
<p dir="ltr">Rogers noted that the decision to stop “about searches” was because the agency’s technical capabilities could not reliably comply with court-ordered rules for such searches. According to Rogers, the FISA Court understands that “if we can work that technical solution in a way that generates greater reliability, I would potentially come back to the court to recommend that we reinstitute [about searching under 702].”</p>
<p dir="ltr"><img src="/files/2017/06/07/screen_shot_2017-06-07_at_8.49.49_am.png" alt="" width="676" height="352" /></p>
<p dir="ltr">8:46 a.m. (PDT) -- Senator King wants to discuss backdoor searching, but only in closed session. King noted that he believes the Fourth Amendment requires a warrant to search for an American’s name in data “legally” collected under Section 702. Unfortunately, we won’t hear the answer.</p>
<p dir="ltr">8:30 a.m. (PDT) -- Surveillance critic Sen. Ron Wyden called out DNI Coats for backtracking on his pledge to do everything in his power to get the promised estimate of the number of Americans’ communications collected under Section 702. Coats replied that he had pledged only to find out why such an estimate was impossible to provide.</p>
<p dir="ltr">As Wyden noted, Coats’ claim is simply not true. During his <a href="https://www.eff.org/deeplinks/2017/03/trumps-director-national-intelligence-pick-wrong-side-surveillance-encryption">confirmation hearing</a> in March, then-Senator Coats told Wyden he would “do everything I can to work with [NSA Director Mike] Rogers and the NSA to get you that number.”</p>
<p dir="ltr">Wyden called Coats’ reversal a “very, very damaging position to stake out.” He warned, “We’re going to battle it out in the course of this, because there are a lot of Americans that share our view that security and liberty are not mutually exclusive.”</p>
<p dir="ltr">8:12 a.m. (PDT) -- Rosenstein repeats again the claim that there has never been an intentional violation of oversight rules regarding Section 702. So we guess that means that “<a href="https://www.eff.org/deeplinks/2013/11/busting-eight-common-excuses-nsa-surveillance">LOVEINT</a>,” the intentional misuse of NSA’s databases by analysts to spy on lovers and ex-lovers wasn’t done under Section 702?</p>
<p dir="ltr">Also, his response misses the point that the programs under Section 702 are themselves problematic and include mass, un-targeted surveillance of both foreigners and Americans. You can follow the rules, but if the rules are privacy invasive, you’re still invading Americans’ privacy.</p>
<p dir="ltr">7:53 a.m. (PDT) -- Deputy Attorney General, Rod Rosenstein: in the absence of Section 702, we would be required to obtain a court order based on probable cause whenever we wanted to collect foreign intelligence information on foreigners not in the United States. But he fails to note that Section 702 collection includes Americans’ communications. And yes, that does require a warrant.</p>
<p dir="ltr">7:45 a.m. (PDT) -- DNI Coats is backing out of his predecessor’s commitment to provide Congress with an estimate of how many U.S. persons’ (citizens and permanent residents) communications are collected under Section 702. Congress needs that information if it wants to responsibly debate reauthorizing this authority.</p>
<p dir="ltr">“To determine if communicants are U.S. persons, NSA would be required to conduct significant additional research,” Coats said.</p>
<p dir="ltr">That is not an adequate response to the question of how many Americans’ communications are collected without a warrant. As Liza Goitein--co-director of the Brennan Center for Justice’s Liberty and National Security Program--said during the House hearing earlier this year, the NSA is currently required to determine whether a communications collected under Section 702 is to or from a U.S. person. If the NSA is following the law, they should already know how many Americans’ communications are collected through Section 702 programs. No additional research is required to provide the long-promised estimate, and the Intelligence Community should not be hiding behind this supposedly pro-privacy excuse.</p>
<p dir="ltr">7:40 a.m. (PDT) -- During his testimony, DNI Coats talked about NSA’s recent decision to end “about searches,” the NSA’s searching of the content of communications through Upstream surveillance. <a href="https://www.eff.org/deeplinks/2017/04/end-nsas-about-searches-just-beginning">Read more</a> about what that means and why it’s not the only change needed to rein in Section 702 surveillance.</p>
<p dir="ltr">7:33 a.m. (PDT) -- Director of National Intelligence, Dan Coats, in his prepared testimony totally glossed over how poorly Section 702 oversight actually works. Contrary to DNI Coats’ suggestion, even the secretive Foreign Intelligence Surveillance Court has found that intelligence analysts violated so routinely that the court couldn’t in allow it to continue.</p>
<p dir="ltr">7:31 a.m. (PDT) -- In his opening statement, Senate Intelligence Chairman Richard Burr defended Section 702, warning that now “is not the time to needlessly roll back and handicap these capabilities.” He noted concerns from privacy advocates like EFF, but tied Section 702 to the U.S. government’s ability to conduct investigations, including the investigation into possible coordination between Russia and President Donald Trump’s advisors.</p>
<p dir="ltr">We do not think the need to conduct investigations can ever outweigh the constitutional protections provided to Americans. Section 702 defenders like Burr will say these authorities are aimed at foreigners located abroad, but we know that programs under Section 702 intentionally and routinely sweep up millions of communications to and from Americans, all without a warrant.</p>
<p dir="ltr">Senator Burr -- along with Sen. Tom Cotton -- is reportedly behind <a href="https://www.cotton.senate.gov/?p=blog&amp;id=696">a new bill</a> that would not only reauthorize Section 702, but make it permanent. Permanently reauthorizing Section 702 is a mistake and would leave Congress without any opportunity to conduct meaningful oversight of these vast Internet spying powers.</p>
</div></div></div>Wed, 07 Jun 2017 14:17:47 +000096170 at https://www.eff.orgPrivacyNSA SpyingKate TummarelloNate CardozoWikimedia's Constitutional Challenges of NSA Upstream Surveillance Move Forwardhttps://www.eff.org/ru/deeplinks/2017/05/victory-asterisk-wikimedias-constitutional-challenges-nsa-upstream-surveillance
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><div>
<p>A court <a href="http://www.ca4.uscourts.gov/Opinions/Published/152560.P.pdf" target="_blank">ruling</a> today allowing <a href="https://www.eff.org/press/releases/eff-urges-appeals-court-allow-wikimedia-and-others-fight-nsa-surveillance" target="_blank">Wikimedia</a>’s claims challenging the constitutionality of NSA’s <a href="https://www.eff.org/nsa-spying" target="_blank">Upstream surveillance</a> to go forward is good news. It shows that the court—the U.S. Court of Appeals for the Fourth Circuit—is willing to take seriously the impact mass surveillance of the Internet backbone has on ordinary people. Wikimedia's First and Fourth Amendment challenges will move on to the next phase in the case, <a href="https://www.eff.org/cases/wikimedia-v-nsa" target="_blank">Wikimedia Foundation v. NSA</a>&#13;</p>
<p>The news isn't all good: we disagree with the court's decision disallowing Wikimedia's other dragnet collection claims from going forward, and think the dissent got it right. In <a href="https://www.eff.org/cases/jewel" target="_blank">Jewel v. NSA</a>, EFF's landmark lawsuit challenging NSA surveillance, the Ninth Circuit Court of Appeals has already <a href="https://www.eff.org/press/releases/eff-hails-court-ruling-rejecting-nsa-bulk-collection-americans-phone-records" target="_blank">ruled</a> that our claims pass initial review. The trial court presiding over the case just last week <a href="https://www.eff.org/deeplinks/2017/05/judge-orders-government-provide-evidence-about-internet-backbone-upstream" target="_blank">required the government to comply</a> with our request to provide information about the scope of the mass surveillance. Jewel v. NSA includes <a href="https://www.eff.org/files/filenode/att/presskit/ATT_onepager.pdf" target="_blank">specific evidence</a> of a backbone tapping location on Folsom Street in San Francisco presented by former AT&amp;T employee Mark Klein. This level of detail and description is enough for our claims to move forward even with the Fourth Circuit’s ruling.&#13;</p>
</div>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/wikimedia-v-nsa">Wikimedia v. NSA</a></div><div class="field__item odd"><a href="/ru/cases/jewel">Jewel v. NSA</a></div></div></div>Tue, 23 May 2017 23:00:51 +000096040 at https://www.eff.orgLegal AnalysisPrivacyNSA SpyingCindy CohnJudge Orders Government to Provide Evidence About Internet Surveillancehttps://www.eff.org/ru/deeplinks/2017/05/judge-orders-government-provide-evidence-about-internet-backbone-upstream
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>We're finally going to get some honesty on how the NSA spies on innocent Americans' communications.&#13;</p>
<p>A federal judge late last week in <a href="https://www.eff.org/cases/jewel">Jewel v. NSA</a>, EFF’s landmark case against mass surveillance, <a href="https://www.eff.org/files/2017/05/23/jewel_cmc_order_may_2017.pdf">ordered</a> [PDF] the government to provide to it all relevant evidence necessary to prove or deny that plaintiffs were subject to NSA surveillance via tapping into the Internet backbone. This includes surveillance done pursuant to <a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">section 702 of the FISA Amendments Act</a> since 2008, which is up for renewal this year. It also includes surveillance between 2001-8 conducted pursuant to the Presidents Surveillance Program. &#13;</p>
<p class="p1">In 2016 the Court had <a href="https://www.eff.org/deeplinks/2016/06/jewel-v-nsa-moves-forward-time-nsa-answer-basic-questions-about-mass-surveillance">ordered</a> that the plaintiffs could seek discovery. After over a year of government stonewalling, the Court has now ordered the government to comply with a narrowed set of discovery requests by August 9, 2017. The discovery is aimed at whether plaintiffs' communications were subject to the mass NSA program tapping into the Internet backbone called Upstream. The court also ordered the government to file as much of its responses as possible on the public court docket. </p>
<p class="p1">The Jewel v. NSA case continues to mark the first time the NSA has been ordered to respond to civil discovery about any of its mass surveillance programs. Since the first EFF case against NSA mass surveillance was launched in 2006, the government has abandoned or dramatically reduced three of the four key programs addressed by the lawsuit: </p>
<ul><li><a href="https://techcrunch.com/2014/08/12/nsa-internet-metadata-program-collected-more-than-was-allowed-shared-data-too-broadly/">Internet metadata collection</a>,</li>
<li>Mass collection of telephone records collection under <a href="https://www.eff.org/deeplinks/2015/05/usa-freedom-act-passes-what-we-celebrate-what-we-mourn-and-where-we-go-here">Section 215 of the Patriot Act</a> which was ended by passage of the USA Freedom Act in 2015,</li>
<li><a href="https://www.eff.org/deeplinks/2017/04/end-nsas-about-searches-just-beginning">Full-content “about” searching</a> of information collected from the Internet backbone. </li>
</ul><p>What's left, at least that the public is aware of at this time, is the interception and use of communications flowing over the Internet backbone at key junctures. Thanks to the new order, the U.S. government will, for the first time, have to answer to privacy concerns about the remaining Internet surveillance methods and their impact on Americans.&#13;</p>
<ul></ul><p class="p1 pull-quote">The NSA must tell the Court whether its 702 Upstream surveillance touches the communications of millions of Americans.</p>
<p class="p2">It’s been a long, slow road, but the NSA has been forced to reduce its mass spying in the United States in major ways. This has come through a combination of litigation pressure, ongoing activism and public concern, technological efforts to encrypt more of the Internet, Congressional pressure, and a steady stream of information coming out about its activities including from government investigations spurred by whistleblowers like Edward Snowden and Mark Klein. EFF will continue to push forward with the litigation and all of EFF's other efforts until all Americans who rely on the Internet can feel safe that they can communicate online without NSA having broad access to their communications.</p>
<p class="p2">San Francisco attorney Richard Wiebe argued the matter for the plaintiffs. Also assisting EFF with the case are attorneys from the firm Keker, Van Nest and Peters, Thomas Moore III, James Tyre and Aram Antaramian.</p>
</div></div></div><div class="field field--name-field-related-cases field--type-node-reference field--label-above"><div class="field__label">Related Cases:&nbsp;</div><div class="field__items"><div class="field__item even"><a href="/ru/cases/jewel">Jewel v. NSA</a></div></div></div>Tue, 23 May 2017 15:51:46 +000096009 at https://www.eff.orgLegal AnalysisNSA SpyingSurveillance TechnologiesCindy CohnWhat Don’t You Want the NSA to Know About You?https://www.eff.org/ru/deeplinks/2017/05/what-dont-you-want-nsa-know-about-you
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>For years, U.S. government surveillance of innocent Americans has been a topic of heated debate, especially for those in the tech community.&#13;</p>
<p>With Congress gearing up for a fight over the 2017 reauthorization of a surveillance authority that lets the NSA spy on innocent Americans without a warrant—Section 702, enacted as part of the FISA Amendments Act—that debate is sure to rage on in the coming months.&#13;</p>
<p>So we sent reporter David Spark to the RSA Conference in San Francisco, California in February to ask one simple question: What don’t you want the NSA to know about you?&#13;</p>
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<p>The answers spanned the spectrum, from emails, to phone calls, to web browsing records, to financial information, to information about individuals’ children, to nothing.&#13;</p>
<p>Some got philosophical. “Everyone says, ‘I have nothing to hide,’ and that’s not the point,” one attendee told us. “The point is that I want to control what people know about me.”&#13;</p>
<p>Others turned the question on its head, asking instead why the NSA is conducting surveillance on Americans. “I don’t think their charter is to spy on Americans, so why are they?” one asked.&#13;</p>
<p>And some got blunt. One attendee said he already assumes the NSA knows a lot about him already. “It scares me and offends me,” he said.&#13;</p>
<p>If the warrantless spying on Americans scares and offends you, <a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">contact your representatives in Congress</a> and tell them to pull the plug on Section 702 surveillance. And watch the video to see other RSA Conference attendees’ responses.&#13;</p>
<p><i>Special thanks to David Spark (</i><a href="http://twitter.com/dspark"><i>@dspark</i></a><i>) and </i><a href="http://sparkmediasolutions.com/"><i>Spark Media Solutions</i></a><i> for their support and production of this video. The background music heard at the end—the song </i><a href="https://soundtrackforfilm.bandcamp.com/track/hydrated"><i>Hydrated</i></a><i>—is licensed CC BY-NC-SA 3.0 by </i><a href="http://kronstudios.org/"><i>Kronstudios</i></a><i>. EFF original work (i.e., every thing but the background music heard at the end) is licensed CC BY 4.0.</i></p>
</div></div></div>Mon, 01 May 2017 22:38:49 +000095819 at https://www.eff.orgNSA SpyingKate TummarelloThe End of the NSA's ‘About’ Searches Is Just the Beginninghttps://www.eff.org/ru/deeplinks/2017/04/end-nsas-about-searches-just-beginning
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The NSA is stopping its use of one controversial surveillance technique that impacts Americans' privacy.&#13;</p>
<p>Make no mistake. This is good news for anyone who wants government surveillance to follow the law. But there’s much more to be done to rein in unconstitutional spying.&#13;</p>
<p>Initially reported by <a href="https://www.nytimes.com/2017/04/28/us/politics/nsa-surveillance-terrorism-privacy.html?smid=tw-share">The New York Times</a> today and <a href="https://www.nsa.gov/news-features/press-room/press-releases/2017/nsa-stops-certain-702-activites.shtml">confirmed</a> by the agency itself, the NSA will no longer conduct “about” searches of the full content of Internet communications, including to and from innocent Americans, that are "about" -- or mention -- a foreign intelligence target’s email address or other identifier. The NSA said the changes were a result of “inadvertent compliance incidents,” or violations of court-imposed restrictions.&#13;</p>
<p>These searches happen as part of the NSA’s Upstream program, through which the agency taps directly into the Internet backbone to seize and search Internet traffic. The U.S. government has claimed these warrantless searches of Americans’ email are allowed under Section 702, enacted as part of the FISA Amendments Act, which is set to expire at the end of the year.&#13;</p>
<p>In the NSA’s own words:&#13;</p>
<blockquote><p>“NSA will no longer collect certain internet communications that merely mention a foreign intelligence target. … Instead, NSA will limit such collection to internet communications that are sent directly to or from a foreign target.&#13;</p>
<p>Even though NSA does not have the ability at this time to stop collecting ‘about’ information without losing some other important data, the Agency will stop the practice to reduce the chance that it would acquire communications of U.S. persons or others who are not in direct contact with a foreign intelligence target.&#13;</p>
<p>Finally, even though the Agency was legally allowed to retain such ‘about’ information previously collected under Section 702, the NSA will delete the vast majority of its upstream Internet data to further protect the privacy of U.S. person communications.”</p>
</blockquote>
<p>For nearly a decade, EFF has <a href="https://www.eff.org/cases/jewel">argued in court</a> that these and other warrantless searches and seizures through Upstream are unconstitutional. Although today's announcement is a welcome one, the NSA has demonstrated, time and time again, that it will <a href="https://www.eff.org/deeplinks/2015/05/usa-freedom-act-passes-what-we-celebrate-what-we-mourn-and-where-we-go-here">only institute meaningful reforms</a> after it gets caught in serious and repeated violation of the law.&#13;</p>
<p>We demand better from our country’s intelligence community. With the looming sunset of Section 702, Congress is in the perfect position to demand more too, starting with a full and public explanation the scope of Section 702 surveillance, including the long-overdue accounting for how many Americans have been impacted by NSA surveillance.&#13;</p>
<p>When it comes to reforms, Congress should codify the changes the NSA announced today. If “about” searches are so privacy-invasive for innocent Americans, they should be explicitly prohibited by law.&#13;</p>
<p>But that’s not the only way Congress can work to reduce the risk of collecting information about innocent people. Lawmakers should also curtail surveillance programs under Section 702 including by limiting collection to information about true national security concerns instead of allowing the programs to collect the much broader category of “foreign intelligence information.” Lawmakers should also work to reduce “incidental collection,” or the collection of communications to and from Americans who interact with individuals located outside of the United States.&#13;</p>
<p>And that’s just on the intelligence collection side. Congress should limit what the intelligence community can do with information that has been collected under Section 702. One obvious move would be to close the “<a href="https://www.eff.org/deeplinks/2014/05/way-nsa-uses-section-702-deeply-troubling-heres-why">backdoor search loophole</a>,” or the gap in privacy protections that allows the FBI to search for information about Americans in databases containing information collected under Section 702 without getting a warrant. Efforts to close this loophole have been widely supported on the Hill in the past and should be included in any reform package Congress considers this year.&#13;</p>
<p>Outside of what information is collected and how it’s used, lawmakers should push for increased transparency into and oversight of the intelligence community’s use of Section 702. That includes things like declassifying more information about the NSA’s surveillance programs, letting companies publish more specific information about the government requests they receive for customer data, and making it easier for Americans to bring lawsuits against the U.S. government if they feel their constitutional privacy protections have been violated.&#13;</p>
<p>The NSA’s announcement today is a win for constitutional privacy protections, for those of us fighting unlawful surveillance in the courts, and for anyone who pushed for surveillance reform by signing a petition, contacting their lawmakers, or otherwise voicing their concerns about warrantless spying on innocent Americans.&#13;</p>
<p>With the 702 reauthorization debate set to unfold in the coming weeks and months, we need to <a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">tell Congress to keep fighting</a> to rein in this warrantless spying.&#13;</p>
<p class="eff_digital_voices-take_action"><a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs"><img src="/sites/all/modules/custom/eff_digital_voices/plugins/take_action/images/button.png" alt="Take Action" title="Take Action" class="eff_digital_voices-take_action" /><strong>Tell Congress: Pull the Plug on Internet Spying Programs.</strong></a></p>
</div></div></div>Sat, 29 Apr 2017 00:12:29 +000095806 at https://www.eff.orgCommentaryPrivacyNSA SpyingKate TummarelloDissent Made Meaningfulhttps://www.eff.org/ru/deeplinks/2017/04/dissent-made-meaningful
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>Over the last year, large numbers of Americans have grown politically active for the first time. Reflecting the depth of our constitutional crisis, however, many seem not to know <a href="https://www.eff.org/deeplinks/2017/04/congress-home-these-next-two-weeks-will-members-hear-you">how to meaningfully raise their voices</a> or participate in the political process.&#13;</p>
<p><b>Civic Participation Beyond Elections</b>&#13;</p>
<p>Turnout in American elections has remained <a href="http://www.pewresearch.org/fact-tank/2016/08/02/u-s-voter-turnout-trails-most-developed-countries/">abysmally low</a> for decades, suggesting some degree of either apathy, <a href="http://www.truth-out.org/news/item/39879-elusive-victories-voting-rights-desegregation-and-the-erosion-of-civil-rights">suppression</a>, or both. Even Americans who do vote often overlook a litany of <a href="https://www.commondreams.org/views/2016/11/02/eight-ways-strengthen-our-democracy-beyond-voting">further opportunities</a> available to those who pursue them.&#13;</p>
<p class="pull-quote">Letters from individual constituents are most effective when combined with other strategies.</p>
<p>One source of guidance to many nascent activists has been <a href="https://www.indivisibleguide.com/guide/">the Indivisible guide</a>, which emphasizes constituent communications to Members of Congress. It was compiled by congressional staffers whose suggestions aim to <a href="http://www.latimes.com/politics/la-pol-ca-indivisible-protests-trump-congress-20170206-story.html">replicate</a> the <a href="http://www.npr.org/2012/04/23/151060718/behind-the-scene-to-the-next-debacles-video-trackers">direct engagement</a> of Congress successfully promoted by Tea Party networks that have <a href="https://www.eff.org/deeplinks/2014/04/tea-party-taxes-and-why-patriots-wouldve-revolted-against-surveillance-state">shared EFF’s transpartisan concerns</a> about, for instance, <a href="http://www.freedomworks.org/content/congress-seeks-expand-warrantless-surveillance-under-patriot-act">mass surveillance</a> and the threat it poses to democracy.&#13;</p>
<p>To their credit, the Indivisible guide's authors acknowledge that their guide “is not a panacea, and <a href="https://www.indivisibleguide.com/guide/conclusion/">it is not intended to stand alone</a>.” While important, letters from individual constituents are most effective when combined with other strategies.&#13;</p>
<p><b>How to Make a Letter Matter</b>&#13;</p>
<p>Contacting an elected member of Congress represents an important act of political expression. Even when taking the time to write letters, however, individual constituents can be disregarded, or engaged in passing without commanding attention. Many who do gain the attention of their elected representatives’ offices receive only a form response. &#13;</p>
<p>Letters can, however, carry influence, particularly when they include:&#13;</p>
<ol><li>An explicit request or demand for a particular vote on a specific piece of proposed legislation,</li>
<li>A request for a meeting in person, and</li>
<li>Support from at least three (and ideally half a dozen to a dozen) neighbors who co-sign the letter, identify themselves as constituents living in that office's legislative district, and attend the meeting together.</li>
</ol><p>Are you part of a community group that gathers to examine the issues and write letters together? Letter writing events can become infinitely more influential when participants simply sign each other's letters, so that they reflect—and are received as indicating—dissent not just by an individual, but rather by <i>an organized group of constituents</i>.&#13;</p>
<p>To expand its reach, a grassroots group can easily direct letters not only at its Member of the House of Representatives, but also two U.S. senators, as well as members of the state legislature. It takes only five people writing one letter each to meaningfully raise a shared concern across those layers of federal and state representation. &#13;</p>
<p>Groups of more than five can also reach elected officials at the municipal and the county level, where policy opportunities are most fluid and <a href="https://www.eff.org/deeplinks/2016/06/california-county-breaks-new-ground-surveillance-transparency">potentially transformative</a>.&#13;</p>
<p><b>Dissent in Public</b>&#13;</p>
<p>Even letters written on behalf of groups remain generally private communications. Escalating pressure on elected representatives requires taking one's concerns to the public sphere.&#13;</p>
<p>One way to express public dissent is to <a href="http://www.theopedproject.org/index.php?option=com_content&amp;view=article&amp;id=68&amp;Itemid=80">write</a> and submit <a href="http://www.advocatesforyouth.org/topics-issues/organizational-development/246?task=view">an op-ed</a> for publication in a local newspaper. Concise, persuasive, forceful writing of 700 words or fewer can often interest editors seeking commentary to share with a broad audience. Whether or not an op-ed submission is published by a newspaper, social media or outlets like Medium.com can offer an alternative platform for publication. Finally, groups of constituents can sometimes meet a newspaper's editorial board to educate editors who write their own columns.&#13;</p>
<p>Beyond press–based public dissent are any number of event–based alternatives, from expressive events like <a href="https://rally.stopwatching.us/">rallies</a>, marches, and protests, to educational ones like teach ins, public discussions, or debates. Even seemingly recreational events like <a href="https://www.rockagainstthetpp.org/">concerts</a> or <a href="https://journal.burningman.org/2015/12/global-network/rhymes-with-burning-man/catharsis-burning-for-change-on-the-national-mall/">parties</a> can prompt a public discourse if organized to emphasize substantive themes.&#13;</p>
<p>Finally, creative visual stunts, like <a href="http://www.charlotteobserver.com/news/local/article127653299.html">flash mobs</a>, <a href="https://twitter.com/sheeyahshee/status/454610441785053184">light brigades</a>, and <a href="https://www.youtube.com/watch?v=969j8nc_xpM">banner drops</a>—especially when amplified through social media—can offer groups with relatively few participants the chance to reach large audiences.&#13;</p>
<p>Events educating a public audience can shift the ground beneath an elected official and ultimately offer more influence than requests or demands made directly to their offices. &#13;</p>
<p><b>Opportunities</b>&#13;</p>
<p>Training is available for any of these tactics through <a href="https://www.eff.org/EFA">the Electronic Frontier Alliance</a>, a network of local grassroots groups across the U.S. that remotely convenes each month. Any network of neighbors who share concerns about digital rights is welcome to <a href="https://www.eff.org/EFA-FAQ">explore</a> and <a href="https://supporters.eff.org/join-the-efa">apply to join</a> the EFA.&#13;</p>
<p>The Alliance offers groups that join access to EFF supporters in their own areas, other <a href="https://www.eff.org/electronic-frontier-alliance/allies">grassroots organizers elsewhere</a>, and EFF staff available to provide policy or organizing guidance on request (including a sample letter seeking a meeting with a congressional office). Materials are currently under development offering detailed guidance on various campaign models, from hosting digital security workshops, to seeking legal restrictions on mass surveillance by local police. &#13;</p>
<p>Throughout the year, Congress takes occasional recesses, when lawmakers return to their states and districts. During these periods, congressional delegations are most accessible to constituents—and more vulnerable to their criticism. The <a href="https://www.senate.gov/legislative/2017_schedule.htm">Senate</a> and <a href="https://www.majorityleader.gov/wp-content/uploads/2016/11/2017-MONTHLY-CALENDAR.pdf">House</a> calendars include information about in-district work periods, one of which <a href="https://www.eff.org/deeplinks/2017/04/congress-home-these-next-two-weeks-will-members-hear-you">concludes this week</a>.&#13;</p>
<p>During this week’s recess, we urge concerned readers to: &#13;</p>
<ol><li>Voice your concerns about Congress’ recent decision to <a href="https://www.eff.org/deeplinks/2017/04/congress-home-these-next-two-weeks-will-members-hear-you">side with corporate ISPs over their users</a> and your privacy,</li>
<li>Explain your support for <a href="https://www.eff.org/deeplinks/2016/12/network-neutrality-2016">net neutrality</a> and encourage opposition to potential proposals that would further limit the FCC’s jurisdiction, and</li>
<li>Share your reasons for wanting transparency, oversight, and meaningful limits on <a href="https://www.eff.org/deeplinks/2016/06/end-702">NSA mass surveillance</a>.</li>
</ol></div></div></div>Wed, 19 Apr 2017 16:32:19 +000095687 at https://www.eff.orgCommentaryElectronic Frontier AllianceNet NeutralityNSA SpyingShahid ButtarTrump's Director of National Intelligence Pick Is on the Wrong Side of Surveillancehttps://www.eff.org/ru/deeplinks/2017/03/trumps-director-national-intelligence-pick-wrong-side-surveillance-encryption
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>President Donald Trump’s pick for Director of National Intelligence has laid out his vision for the country’s surveillance, and it’s not good for technology users.&#13;</p>
<p>In his confirmation in front of the Senate Intelligence Committee this week, former-Sen. Dan Coats, a Republican from Indiana, said there need to be continued conversations about legal authorities to undermine encryption and called reauthorizing an authority that the government uses to spy on Americans’ Internet activities without a warrant his “top legislative priority.”&#13;</p>
<p> &#13;</p>
<h3>Government Surveillance</h3>
<p>Coats made it clear that reauthorizing Section 702—which was created by the FISA Amendments Act and expires at the end of this year—is high on his to-do list. In answers to <a href="https://www.intelligence.senate.gov/sites/default/files/documents/aphq-coats-022817.pdf">written</a> <a href="https://www.intelligence.senate.gov/sites/default/files/documents/aphqs-coats-022817.pdf">questions</a> prior to the hearing as well as during the hearing, Coats repeatedly praised the surveillance authority, calling it “a critical tool” and agreed when Sen. John Cornyn quoted FBI Director James Comey’s description of the authority as the “crown jewels of the intelligence community.”&#13;</p>
<p>He also repeatedly defended the programs under <a href="https://www.eff.org/deeplinks/2016/06/end-702">Section 702</a>—which includes the NSA’s warrantless copying and searching of Americans’ Internet activity—as being “designed to go after foreign bad guys” and subject to “a robust oversight regime.”&#13;</p>
<p>We’ve long argued that the surveillance programs under Section 702 are not <a href="https://www.eff.org/deeplinks/2016/08/nsa-word-games-mass-v-targeted-surveillance-under-section-702">targeted</a>, do not have sufficient oversight, and violate Fourth Amendment protections. That’s why we’re <a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">calling on Congress</a> to let the authority sunset.&#13;</p>
<p>As Congress debates Section 702 reauthorization, lawmakers have repeatedly asked the Office of the Director of National Intelligence to make good on former Director James Clapper’s pledge to produce a long-delayed report on the number of U.S. communications that are swept up under Section 702 surveillance. When asked by Sen. Ron Wyden if he plans to produce that report, Coats said he will “do everything I can to work with [NSA Director Mike] Rogers and the NSA to get you that number.”&#13;</p>
<p>Coats also appears prepared to ask for rollbacks to crucial privacy reforms enacted in 2015.&#13;</p>
<p>As a senator, Coats voted against the <a href="https://www.eff.org/deeplinks/2015/04/new-usa-freedom-act-step-right-direction-more-must-be-done">USA FREEDOM Act</a>, the bill that made privacy-enhancing improvements to the government’s national security surveillance programs, including prohibiting a program involving the bulk collection of Americans’ phone call records. In his written answers, Coats acknowledged that, if confirmed, he “will ensure the [intelligence community] abides by … the changes to the program made as part of the USA FREEDOM Act.”&#13;</p>
<p>However, he said he’s prepared to come back to Congress if he sees “deficiencies in the program,” including if telecom companies fail to retain phone records for long enough to be useful to intelligence agencies. Privacy advocates fought hard to keep phone record <a href="https://www.eff.org/issues/mandatory-data-retention">retention requirements</a> out of the USA FREEDOM Act, and we stand ready to fight if Coats or anyone else tries to put them in place in the future.&#13;</p>
<p> &#13;</p>
<h3>Encryption</h3>
<p>Coats called on lawmakers and tech companies to continue working on the issue of law enforcement access to encrypted data.&#13;</p>
<p>While he said he recognized the value of encryption as an essential security and privacy tool, he also said the “ongoing discussion” about the legal authority to access data even when it’s encrypted should continue. “The CEOs of companies that are making devices and guaranteeing their buyers encryption, they worry about their families, … they worry about attacks on the U.S.,” he said. We’ve fought <a href="https://www.eff.org/deeplinks/2016/04/burr-feinstein-proposal-simply-anti-security">efforts on the Hill</a> to undermine users’ security, and we will continue to push back on proposals to force companies to give law enforcement backdoors to encrypted technologies.&#13;</p>
<p> &#13;</p>
<h3>Privacy Protections Abroad</h3>
<p>Coats tried to quell lawmakers concerns about the Trump administration undermining privacy protections for foreigners, especially in it’s aggressive anti-immigration push.&#13;</p>
<p>On Presidential Policy Directive 28 – an Obama-era <a href="https://www.eff.org/document/presidential-policy-directive-28">document</a> that outlines basic privacy protections for foreigners – Coats wrote that he expects the administration is reviewing the policy along with other presidential directives “in the interest of determining whether in their present for they still address national priorities or deserve to be revisited.”&#13;</p>
<p>But he noted specifically that European officials relied heavily on the privacy protections in PPD-28 when approving the Privacy Shield, a data deal that lets U.S. companies bring European users’ data across the Atlantic. “For that reason, before any changes to the PPD are made, I believe it important to consider the consequence of any modifications,” he wrote.&#13;</p>
<p>Although we’ve <a href="https://www.eff.org/deeplinks/2016/10/empty-promises-privacy-foreigners-abroad">criticized</a> PPD-28 as not going far enough to give privacy protections to those located abroad, rolling back those protections would be worse still.</p>
</div></div></div>Fri, 03 Mar 2017 20:51:56 +000095160 at https://www.eff.orgCommentaryNSA SpyingKate TummarelloLiveblogging Today’s House Judiciary Hearing on Section 702https://www.eff.org/ru/deeplinks/2017/03/live-blogging-todays-section-702-hearing
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The U.S. government’s warrantless Internet spying is in the hot seat today.&#13;</p>
<p>The House Judiciary Committee is holding a <a href="https://judiciary.house.gov/hearing/section-702-fisa-amendments-act/">two-part hearing</a> this morning about the Section 702, created by the FISA Amendments Act, which the government uses to justify the unconstitutional mass surveillance of Americans’ online activity. EFF opposes the sweeping surveillance that happens under Section 702, and we’re <a href="https://act.eff.org/action/pull-the-plug-on-internet-spying-programs">calling on Congress</a> to let the authority lapse when it is set to expire at the end of the year.&#13;</p>
<p>In advance of this hearing, a coalition of Internet giants known as <a href="http://reformgs.tumblr.com/post/157838097962/reform-government-surveillance-letter-to-house-and">Reform Government Surveillance issued a letter</a> calling for significant reforms to Section 702. We hope that the companies’ letter will set the tone for this hearing: Section 702 must not be reauthorized in its current form.&#13;</p>
<p>Below is our running live blog of the House Judiciary hearing’s unclassified portion.&#13;</p>
<p>------------------------------&#13;</p>
<p>8:00 a.m. (PST) -- While the hearing started at 10 a.m. (EST), the Committee is still in its closed, classified session. We’ll start live blogging as soon as the public portion of the hearing begins.&#13;</p>
<p>8:53 a.m. (PST) -- The classified hearing is going longer than expected. &#13;</p>
<p>9:40 a.m. (PST) -- The Committee is still in closed session. We'll start blogging as soon as there's something to blog. &#13;</p>
<p>10:20 a.m. (PST) -- The closed session is <em>finally </em>over after more than three hours and the unclassified hearing is about to start. &#13;</p>
<p>10:40 a.m. (PST) -- Chairman Goodlatte (R-VA) has reconvened the hearing with a description of Section 702 that completely glosses over the fact that the operation of "Upstream," a program purportedly authorized under the section, scans vast quantities of Americans' communications without probable cause. Here's the <a href="https://judiciary.house.gov/press-release/goodlatte-statement-hearing-fisa-section-702/">full text of his statement</a>.&#13;</p>
<p><img src="/files/2017/03/01/screen_shot_2017-03-01_at_10.38.43_am.png" width="569" height="325" alt="" /></p>
<p>10:55 a.m. (PST) -- The Committee’s top Democrat Rep. John Conyers took the intelligence community to task for failing to deliver on its promise to provide lawmakers an estimate of the number of U.S. communications that are “incidentally” swept up by the NSA under Section 702.&#13;</p>
<p>While lawmakers repeatedly asked for that report to inform the congressional debate over Section 702 reauthorization, “the intelligence community has not so much as responded to our December letter” asking for an update on the timing of the estimate, he said. “I had hoped for better.”&#13;</p>
<p>Conyers said lawmakers “will not simply take the government’s word on the size of the so-called incidental collection.” He’s right, and we won’t take the government’s word either. No one outside of the intelligence community (or even inside the IC, it seems) has a good estimate of how many Americans are impacted by the warrantless Internet surveillance under Section 702. That is unacceptable as Congress debates reauthorizing this sweeping surveillance authority.&#13;</p>
<p>10:59 a.m. (PST) -- Mr. Kosseff (a professor at the U.S. Naval Academy) <a href="https://judiciary.house.gov/wp-content/uploads/2017/02/Kosseff-Testimony.pdf">takes the position</a> that “foreign intelligence” represents a blanket exception to the Fourth Amendment’s warrant requirement, and that Section 702 falls within it. We at EFF cannot disagree more.&#13;</p>
<p>11:05 a.m. (PST) -- Ms. Doss (a former NSA attorney) <a href="https://judiciary.house.gov/wp-content/uploads/2017/02/Doss-Testimony.pdf">makes the deeply misleading claim</a> that Section 702 collection is targeted surveillance. That’s just plain wrong; <a href="https://www.eff.org/press/releases/eff-asks-judge-rule-nsa-internet-backbone-spying-techniques-unconstitutional">Section 702 includes spying directly on the Internet backbone</a>.&#13;</p>
<p>11:06 a.m. (PST) -- The Committee has gone into recess for approximately 45 minutes so that members can make it to the floor for a vote.&#13;</p>
<p>12:33 p.m. (PST) -- We're now nearly 90 minutes into the "45 minute" recess. No sign of the Committee reconvening yet.&#13;</p>
<p>12:43 p.m. (PST) -- The Committee has reconvened and noted civil libertarian, Elizabeth Goitein from NYU’s Brennan Center, is testifying.&#13;</p>
<p><img src="/files/2017/03/01/screen_shot_2017-03-01_at_12.51.36_pm.png" width="571" height="332" alt="" /></p>
<p>12:52 p.m. (PST) -- Ms. Goitein pushed back on the claim that surveillance under Section 702 targets individuals located abroad.&#13;</p>
<p>Despite the intelligence community’s claims to the contrary, Section 702 surveillance collects “a massive amount of Americans’ communications” which the government keeps “for years and routinely searches … for information to use against Americans in ordinary criminal proceedings,” she said. Thanks to Section 702, “the FBI is reading Americans’ emails and listening to their phone calls without a factual basis to suspect them of wrongdoing, let alone a warrant.”&#13;</p>
<p>This is crucial fact-checking of the myths spread by intelligence community officials.&#13;</p>
<p>12:55 p.m. (PST) -- Former NSA attorney April Doss just made the absurd claim that it would be <em>more privacy intrusive</em> for the NSA to estimate how many Americans’ communications are swept up in Section 702 collection.&#13;</p>
<p>1:00 p.m. (PST) -- Rep. Ted Lieu comes out strong against the backdoor loophole that lets law enforcement agencies like the FBI access Americans’ communications collected under Section 702. “That information can be passed to the FBI to do a criminal proceeding,” he said, calling it “a flat out violation of the Fourth Amendment.”&#13;</p>
<p>1:06 p.m. (PST) -- Rep. Raul Labrador asks: is it possible to subject the 250 million Internet transactions collected per year by the NSA to rigorous oversight? Ms. Goitein notes that there have been a large number of documented violations of law and NSA regulations and there is essentially no effective oversight.&#13;</p>
<p>1:10 p.m. (PST) -- Rep. Labrador raised the question of whether such a vast surveillance system can have adequate safeguards to prevent abuse. Specifically, he cited the recent example of National Security Adviser Michael Flynn resigning after it was leaked that the FBI had reviewed calls between Flynn and the Russian ambassador to the U.S. ahead of President Donald Trump’s inauguration.&#13;</p>
<p>“Can we prevent them from using this personal information to settle [political] scores?” Labrador asked.&#13;</p>
<p>While refraining from commenting on the specifics of Flynn’s surveillance, the Brennan Center’s Liza Goitein said the potential for abuse is one of the problems with the law. “The statute is not narrow enough,” she said.&#13;</p>
<p>1:16 p.m. (PST) -- Rep. Jim Jordan was skeptical of the intelligence community’s claim that it is difficult to come up with a long-promised estimate of how many Americans have had their communications collected under Section 702. “That seems like baloney to me,” the Ohio Republican said. “It’s the greatest intelligence service on the planet. You’d think they’d be able to know that.”&#13;</p>
<p>1:20 p.m. (PST) -- In response to questions from Rep. Jim Jordan, Goitein notes that the Privacy and Civil Liberties Oversight Board report shows that the FBI and NSA routinely search Section 702 collection for evidence that U.S. citizens have committed crimes unrelated to national security. But of course, we don’t know if any such citizens have been prosecuted because the NSA has been less than forthright in their notification requirements.&#13;</p>
<p><img src="/files/2017/03/01/screen_shot_2017-03-01_at_1.21.26_pm.png" width="573" height="334" alt="" /></p>
<p>1:22 p.m. (PST) -- Rep. Ted Lieu raised the critical point that Section 702 surveillance isn’t limited to national security concerns. Instead, it is limited to “foreign intelligence” issues, which is a much broader category. “That could apply to academics, students, human rights activists, lawyers,” he said. “It’s this massive group.”&#13;</p>
<p>Goitein agreed, replying that the system relies on the intelligence community makes responsible decisions about who to target. “We are trusting on the self restraint of the people who are operating these programs,” she said.&#13;</p>
<p>1:25 p.m. (PST) -- Lieu also made the point that EFF has long-argued: the NSA violates the Fourth Amendment’s prohibition on warrantless seizures when it collects Americans’ communications even before it violates the Fourth Amendment’s prohibition on warrantless searches before it scans those communications. As Lieu put it: “Why is the seizure of Americans’ communications not a violation of the Fourth Amendment, totally aside from the searching of it?”&#13;</p>
<p>1:28 p.m. (PST) -- Rep. Ted Poe notes that the NSA doesn’t need to “target” Americans under Section 702 since that would unquestionably require a warrant. Instead, they can just “run across” Americans’ communications that’s “incidentally” collected, and then criminally prosecute them. Indeed, the FBI can search data collected under Section 702 without a warrant. “I think that is illegal and a violation of the Constitution and an abuse of power” says Rep. Poe.&#13;</p>
<p>1:40 p.m. (PST) -- Mr. Kosseff notes that it’s possible that a clean reauthorization of Section 702, the <a href="https://www.eff.org/deeplinks/2016/03/privacy-shield-riddled-surveillance-holes">US-EU Privacy Shield</a> might fail, since Section 702 contains no privacy protections for non-US persons.&#13;</p>
<p>1:48 p.m. (PST) -- The hearing ended on crucial point. As Goitein put it: “Oversight not an end in itself. It’s never a substitute for adequate substantive limits in the law. The law and the rules allow the FBI to read Americans’ emails without obtaining a warrant. The FBI could be scrupulously adhering to those rules, and we still have a problem.”&#13;</p>
<p>1:50 p.m. (PST) -- And with that, the hearing is adjourned.</p>
</div></div></div>Wed, 01 Mar 2017 15:48:51 +000095110 at https://www.eff.orgCommentaryNSA SpyingKate TummarelloNate CardozoTrump’s Attorney General’s Record on Privacyhttps://www.eff.org/ru/deeplinks/2017/02/trumps-attorney-generals-record-privacy
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>President Donald Trump’s nominee to lead the country’s law enforcement has cleared the Senate.&#13;</p>
<p>The Senate voted <a href="https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&amp;session=1&amp;vote=00059">52-47</a> on Wednesday to confirm Sen. Jeff Sessions, whose record on civil liberties issues—including digital rights—has drawn fire from Democratic lawmakers and public interest groups.&#13;</p>
<p>EFF has expressed <a href="https://www.eff.org/deeplinks/2016/12/trump-and-his-advisors-surveillance-encryption-cybersecurity">concerns</a> about Sessions’ record on surveillance, encryption, and freedom of the press. Those concerns intensified during his confirmation process.&#13;</p>
<p>Throughout his confirmation <a href="https://www.eff.org/deeplinks/2017/01/liveblog">hearing</a> in front of the Senate Judiciary Committee and his written responses to additional questions from lawmakers, Sessions made a number of troubling statements. He said he would support legislation to enable a privacy-invasive Rapid DNA system. He refused to definitively commit not to put journalists in jail for doing their job. He <a href="https://www.judiciary.senate.gov/imo/media/doc/Sessions%20Responses%20to%20Blumenthal%20QFRs.pdf">dodged</a> <a href="https://www.judiciary.senate.gov/imo/media/doc/Sessions%20Responses%20to%20Franken%20QFRs.pdf">questions</a> about Justice Department policies on <a href="https://www.eff.org/deeplinks/2012/10/stingrays-biggest-unknown-technological-threat-cell-phone-privacy">Stingrays</a>, and <a href="https://www.judiciary.senate.gov/imo/media/doc/Sessions%20Responses%20to%20Coons%20QFRs.pdf">wouldn't</a> commit to publish guidelines on how federal law enforcement uses government hacking. He called it “critical” that law enforcement be able to “<a href="https://www.eff.org/deeplinks/2017/01/attorney-general-nominee-sessions-backs-crypto-backdoors">overcome</a>” encryption.&#13;</p>
<p>His Senate record on surveillance is also disturbing. Sessions helped to <a href="https://www.eff.org/deeplinks/2016/05/senate-judiciary-committee-must-pass-email-privacy-act-without-weakening">derail reform to the Electronic Communications Privacy Act</a> in the Senate. He also opposed the USA FREEDOM Act, a set of moderate reforms to the NSA’s mass collection of information about Americans’ domestic phone calls. In 2015, he went so far as to pen an alarmist <a href="http://www.nationalreview.com/article/418675/why-should-terrorists-be-harder-investigate-routine-criminals-jeff-sessions">op-ed</a> against the bill, in which he claimed that the bulk phone records collection was “subject to extraordinary oversight” and warned the bill “would make it vastly more difficult for the NSA to stop a terrorist than it is to stop a tax cheat.”&#13;</p>
<p>During the hearing, USA FREEDOM sponsor Sen. Patrick Leahy pressed Sessions on whether he is committed to enforcing the surveillance reform law. Sessions responded that the prohibition on bulk collection “appears to be” the governing statute for U.S. government surveillance. His qualified answer raises concerns. And while he pledged to follow that law, he couldn’t confirm it prohibited bulk collection of domestic phone records in all cases. (It does.)&#13;</p>
<p>In a marathon, all-night debate in opposition to Sessions, Senate Democrats pointed to his track record on surveillance and privacy as a source of concern.&#13;</p>
<p>Montana Democrat Sen. Jon Tester pointed to Sessions’ repeated votes in favor of “the most intrusive aspects of the Patriot Act.” He asked, “Will he fight on behalf of government officials that listen into our phone calls or scroll through our emails or preserve our Snapchats?”&#13;</p>
<p>Washington Democrat Sen. Maria Cantwell said she is concerned by Sessions’ support for “President [George W.] Bush’s warrantless wiretapping and surveillance programs,” and his support for backdoor access to encrypted technologies. “I do have concerns that the president’s nominee…may not stand up to the President of the United States in making sure that the civil liberties of Americans are protected.”&#13;</p>
<p>Now that he has been confirmed, EFF and other civil liberties advocates will work to hold him accountable as Attorney General and block any attempts by him or anyone else to broaden the government surveillance powers that threaten our basic privacy rights.</p>
</div></div></div>Thu, 09 Feb 2017 18:21:38 +000094907 at https://www.eff.orgGovernment Hacking and Subversion of Digital SecurityNSA SpyingKate TummarelloNew CIA Director Mike Pompeo Sparks Privacy Concernshttps://www.eff.org/ru/deeplinks/2017/01/new-cia-director-mike-pompeo-sparks-privacy-concerns
<div class="field field--name-body field--type-text-with-summary field--label-hidden"><div class="field__items"><div class="field__item even"><p>The U.S. Senate confirmed Kansas Republican Rep. Mike Pompeo to be the Director of the CIA late on Monday over concerns from several congressional Democrats, who warned that putting Pompeo at the head of the intelligence agency would threaten civil liberties.&#13;</p>
<p>In an impassioned floor speech, Sen. Bernie Sanders called it “vital to have a head of the CIA who will stand up for our constitution, stand up for privacy rights.” He continued, “Unfortunately, in my view, Mr. Pompeo is not that individual.”&#13;</p>
<p>As we said late last year, we have <a href="https://www.eff.org/deeplinks/2016/12/trump-and-his-advisors-surveillance-encryption-cybersecurity">concerns</a> that many of President Donald Trump’s nominees, including Pompeo, will undermine digital rights and civil liberties, and those concerns persist.&#13;</p>
<p>Specifically, Pompeo sponsored <a href="https://www.govtrack.us/congress/bills/114/hr4270">legislation</a> that would have reinstated the National Security Agency’s bulk collection of Americans’ telephone metadata—an invasive program that civil liberties and privacy advocates fought to curtail by enacting the USA FREEDOM Act.&#13;</p>
<p>We also noted troubling op-eds written by Pompeo. In one <a href="http://www.nationalreview.com/article/428822/some-republicans-weak-national-security">piece</a> in late 2015, Pompeo criticized Republican presidential candidates who were supposedly “weak” on national security and intelligence collection. “Less intelligence capacity equals less safety,” he wrote.&#13;</p>
<p>In another <a href="http://pompeo.house.gov/news/documentsingle.aspx?DocumentID=398776">op-ed</a> a few weeks later, Pompeo criticized lawmakers for “blunting [the intelligence community’s] surveillance powers” and called for “a fundamental upgrade to America’s surveillance capabilities.”&#13;</p>
<p>Critics on the Senate floor—including Sens. Ron Wyden, Patrick Leahy and Bernie Sanders—honed in on the latter op-ed, which also recommended restarting the metadata collection that was curtailed under USA FREEDOM Act and “combining it with publicly available financial and lifestyle information into a comprehensive, searchable database.” Pompeo continued, “Legal and bureaucratic impediments to surveillance should be removed.”&#13;</p>
<p>While Pompeo’s defenders argued that an effective intelligence agency should be utilizing publicly available information posted to social media, Wyden—who fought for delay to give the Senate more time to consider Pompeo’s nomination—drew a sharp distinction between seeking out social media information related to a known intelligence target and creating the database Pompeo has envisioned.&#13;</p>
<p>“It is something else entirely to create a giant government database of everyone’s social media postings and to match that up with everyone’s phone records,” Wyden said, calling the idea “a vast database on innocent Americans.”&#13;</p>
<p>Wyden also criticized Pompeo for skirting <a href="https://www.intelligence.senate.gov/sites/default/files/documents/pre-hearing-b-011217.pdf">questions</a> from lawmakers about what kinds of information would end up in the database, including whether the database would include information held by data brokers, the third-party companies that build profiles of internet users. He criticized Pompeo for being unwilling to “articulate the boundaries of what is a very extreme proposal.”&#13;</p>
<p>EFF thanks all <a href="https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=115&amp;session=1&amp;vote=00032">32 Senators</a> who voted against Pompeo and his expansive vision of government surveillance. We were especially pleased by the <a href="https://twitter.com/KamalaHarris/status/823708898507051008">“no” vote</a> from our new home-state Sen. Kamala Harris of California.&#13;</p>
<p>EFF and other civil liberties advocates will work hard to hold Pompeo accountable as CIA Director and block any attempts by him or anyone else to broaden the intrusive government surveillance powers that threaten our basic privacy rights.</p>
</div></div></div>Tue, 24 Jan 2017 18:44:02 +000094727 at https://www.eff.orgPATRIOT ActNSA SpyingKate Tummarello